By vesting in the National Labor Relations Board jurisdiction
over labor relations matters affecting interstate commerce,
Congress has completely displaced state power to deal with such
matters where the Board has declined to exercise its jurisdiction,
but has not ceded jurisdiction to a state agency pursuant to the
proviso to § 10(a) of the National Labor Relations Act. Pp.
353 U. S.
2-12.
(a) By the National Labor Relations Act, Congress meant to reach
to the full extent of its power under the Commerce Clause. P.
353 U. S. 3.
(b) An agreement ceding jurisdiction to a state agency under §
10(a) of the National Labor Relations Act is the exclusive means
whereby States may be enabled to act concerning matters which
Congress has entrusted to the National Labor Relations Board. Pp.
353 U. S.
6-10.
(c) Not only was there a general intent on the part of Congress
to preempt the field of labor practices affecting interstate
commerce, but also the proviso to § 10(a) carries an inescapable
implication of exclusiveness. P.
353 U. S. 10.
(d) Since the power of Congress in the area of commerce among
the States is plenary, its judgment in favor of uniformity must be
respected, whatever policy objections there may be to the
creation
Page 353 U. S. 2
of a no-man's land in which labor disputes will not be regulated
by any federal or state agency or court. Pp.
353 U. S.
10-12.
5 Utah 2d 68,
296 P.2d 733,
reversed.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The question presented by this appeal and by No. 41,
post, p.
353 U. S. 20, and
No. 50,
post, p.
353 U. S. 26, is
whether Congress, by vesting in the National Labor
Page 353 U. S. 3
Relations Board jurisdiction over labor relations matters
affecting interstate commerce, has completely displaced state power
to deal with such matters where the Board has declined or obviously
would decline to exercise its jurisdiction, but has not ceded
jurisdiction pursuant to the proviso to § 10(a) of the National
Labor Relations Act. [
Footnote
1] It is a question we left open in
Building Trades Council
v. Kinard Construction Co., 346 U.S. 933.
Some background is necessary for an understanding of this
problem in federal-state relations and how it assumed its present
importance. Since it was first enacted in 1935, the National Labor
Relations Act [
Footnote 2] has
empowered the National Labor Relations Board "to prevent any person
from engaging in any unfair labor practice . . . [defined by the
Act] affecting commerce." [
Footnote
3] By this language and by the definition of "affecting
commerce" elsewhere in the Act, [
Footnote 4] Congress meant to reach to the full extent of
its power under the Commerce Clause.
Labor Board v.
Fainblatt, 306 U. S. 601,
306 U. S.
606-607. The Board, however, has never exercised the
full measure of its jurisdiction. For a number of years, the Board
decided case by case whether to take jurisdiction. In 1950,
concluding that "experience warrants the establishment and
announcement of certain standards" to govern the exercise of its
jurisdiction,
Hollow Tree Lumber Co., 91 N.L.R.B. 635,
636, the Board published standards, largely in terms
Page 353 U. S. 4
of yearly dollar amounts of interstate inflow and outflow.
[
Footnote 5] In 1954, a sharply
divided Board,
see Breeding Transfer Co., 110 N.L.R.B.
493, revised the jurisdictional standards upward. [
Footnote 6] This Court has never passed, and
we do not pass today, upon the validity of any particular
declination of jurisdiction by the Board or any set of
jurisdictional standards. [
Footnote
7]
How many labor disputes the Board's 1954 standards leave in the
"twilight zone" between exercised federal jurisdiction and
unquestioned state jurisdiction is not known. [
Footnote 8] In any case, there has been recently a
substantial volume of litigation raising the question stated at the
beginning of this opinion, of which this case is an example.
[
Footnote 9]
Appellant, doing business in Salt Lake City, Utah, manufactures
specialized photographic equipment for the Air Force on a contract
basis. To fulfill his government contracts, he purchased materials
from outside Utah in an amount "a little less than $50,000."
Finished products
Page 353 U. S. 5
were shipped to Air Force bases, one within Utah and the others
outside. In 1953, the United Steelworkers of America filed with the
Labor Board a petition for certification of that union as the
bargaining representative of appellant's employees. A consent
election was agreed to, the agreement reciting that appellant was
"engaged in commerce within the meaning of Section 2(6), (7) of the
National Labor Relations Act." The union won the election, and was
certified by the National Board as bargaining representative.
Shortly thereafter, the union filed with the National Board charges
that appellant had engaged in unfair labor practices proscribed by
§ 8(a)(1), (3) and (5) of the Act. [
Footnote 10] Meanwhile, on July 15, 1954, the Board
promulgated its revised jurisdictional standards. The Board's
Acting Regional Director declined to issue a complaint. He wrote,
on July 21:
"Further proceedings are not warranted, inasmuch as the
operations of the Company involved are predominantly local in
character, and it does not appear that it would effectuate the
policies of the Act to exercise jurisdiction."
The union thereupon filed substantially the same charges with
the Utah Labor Relations Board, pursuant to the Utah Labor
Relations Act. [
Footnote 11]
Appellant urged that the State Board was without jurisdiction of a
matter within the jurisdiction of the National Board. The State
Board, however, found it had jurisdiction, and concluded on the
merits that appellant had engaged in unfair labor practices as
defined by the Utah Act. It granted relief through a remedial
order. On a Writ of Review, the Utah Supreme Court affirmed the
decision and order of
Page 353 U. S. 6
the state administrative agency. [
Footnote 12] We noted probable jurisdiction. 352 U.S.
817.
On these facts, we start from the following uncontroverted
premises:
(1) Appellant's business affects commerce within the meaning of
the National Labor Relations Act, and the Labor Board had
jurisdiction.
Labor Board v. Fainblatt, supra.
(2) The National Act expressly deals with the conduct charged to
appellant which was the basis of the state tribunals' actions.
Therefore, if the National Board had not declined jurisdiction,
state action would have been precluded by our decision in
Garner v. Teamsters Union, 346 U.
S. 485.
(3) The National Board has not entered into any cession
agreement with the Utah Board pursuant to § 10(a) of the National
Act.
Section 10(a) provides:
"The Board is empowered, as hereinafter provided, to prevent any
person from engaging in any unfair labor practice (listed in
Section 8) affecting commerce. This power shall not be affected by
any other means of adjustment or prevention that has been or may be
established by agreement, law, or otherwise:
Provided, That the
Board is empowered by agreement with any agency of any State or
Territory to cede to such agency jurisdiction over any cases in any
industry (other than mining, manufacturing, communications, and
transportation except where predominantly local in character) even
though such cases may involve labor disputes affecting commerce,
unless the provision of the State or Territorial statute applicable
to the determination of such cases by such
Page 353 U. S. 7
agency is inconsistent with the corresponding provision of
this Act or has received a construction inconsistent
therewith."
(Emphasis added.)
The proviso to § 10(a), italicized in the quotation above, was
one of the Taft-Hartley amendments to the National Labor Relations
Act. Timing and a reference in one of the committee reports
indicate that it was drafted in response to the decision of this
Court in
Bethlehem Steel Co. v. New York Labor Board,
330 U. S. 767.
[
Footnote 13] In
Bethlehem, foremen in an enterprise affecting commerce
petitioned the New York State Labor Relations Board for
certification as a bargaining unit. At that time, the National
Board was declining, as a matter of policy, to certify bargaining
units composed of foremen. The Court held that the federal policy
against certifying foremen's units must prevail. However, it took
occasion to discuss the efforts of the two boards to avoid
conflicts of jurisdiction.
"The National and State Boards have made a commendable effort to
avoid conflict in this overlapping state of the statutes. We find
nothing in their negotiations, however, which affects either the
construction of the federal statute or the question of
constitutional power insofar as they are involved in this case,
since the National Board made no concession or delegation of power
to deal with this subject. The election of the National Board to
decline jurisdiction in certain types of cases, for budgetary or
other reasons, presents a different problem, which we do not now
decide."
Id. at
330 U. S.
776.
Page 353 U. S. 8
Three Justices were led to concur specially, because, as it was
stated for the three:
"I read . . . [the Court's opinion] to mean that it is beyond
the power of the National Board to agree with State agencies
enforcing laws like the Wagner Act to divide, with due regard to
local interests, the domain over which Congress had given the
National Board abstract discretion, but which, practically, cannot
be covered by it alone. If such cooperative agreements between
State and National Boards are barred because the power which
Congress has granted to the National Board ousted or superseded
State authority, I am unable to see how State authority can revive
because Congress has seen fit to put the Board on short
rations."
Id. at
330 U. S.
779.
Thus, if the opinion of the Court did not make manifest, the
concurring opinion did, that, after
Bethlehem, there was
doubt whether a state board could act either after a formal cession
by the National Board or upon a declination of jurisdiction "for
budgetary or other reasons." When we read § 10(a) against this
background, we find unconvincing the argument that Congress meant
by the proviso only to meet the first problem,
i.e.,
cession of jurisdiction over cases the National Board would
otherwise handle.
The proviso is directed at least equally to the type of cases
which the Board might decline "for budgetary or other reasons" to
hear as to the type of cases it might wish to cede to the States
for policy reasons -- if, indeed, there is any difference between
the two classes. Cases in mining, manufacturing, communications,
and transportation can be ceded only where the "industry" is
"predominantly local in character." In other industries, which
Congress might have considered to be more or less typically
local,
Page 353 U. S. 9
it put no such limitation on the Board's power. The Senate
Committee spelled the matter out:
"The proviso which has been added to this subsection [§ 10(a)]
permits the National Board to allow State labor relations boards to
take final jurisdiction of cases in borderline industries
(
i.e., borderline insofar as interstate commerce is
concerned), provided the State statute conforms to national policy.
[
Footnote 14]"
The Committee minority agreed as to the purpose of the proviso,
and agreed
"with the majority that it is desirable thus to clarify the
relations between the Labor Board and the various agencies which
States have set up to handle similar problems. [
Footnote 15]"
We hold that the proviso to § 10(a) is the exclusive means
whereby States may be enabled to act concerning the matters which
Congress has entrusted to the Labor Board. We find support for our
holding in prior cases in this Court. In
Amalgamated Assn. of
Employees v. Wisconsin Board, 340 U.
S. 383,
340 U. S.
397-398, the Court said:
"The legislative history of the 1947 Act refers to the decision
of this Court in
Bethlehem Steel Co. v. New York Labor
Board, 330 U. S. 767 (1947), and, in
its handling of the problems presented by that case, Congress
demonstrated that it knew how to cede jurisdiction to the states.
Congress knew full well that its labor legislation 'preempts the
field that the
Page 353 U. S. 10
act covers insofar as commerce within the meaning of the act is
concerned,' and demonstrated its ability to spell out with
particularity those areas in which it desired state regulation to
be operative."
(Footnotes omitted.) In a footnote to the first sentence quoted
above, the Court cited § 10(a) and described its authorization to
cede jurisdiction only where the state law is consistent with the
national legislation as insuring "that the national labor policy
will not be thwarted even in the predominantly local enterprises to
which the proviso applies."
Id., n 23.
See also Algoma Plywood & Veneer Co. v.
Wisconsin Board, 336 U. S. 301,
336 U. S. 313;
California v. Zook, 336 U. S. 725,
336 U. S.
732.
Our reading of § 10(a) forecloses the argument based upon such
cases as
H. P. Welch Co. v. New Hampshire, 306 U. S.
79, and
Missouri Pacific R. Co. v. Larabee Flour
Mills Co., 211 U. S. 612,
that, "where federal power has been delegated but lies dormant and
unexercised,"
Bethlehem Steel Co. v. New York Labor Board,
supra, at
330 U. S. 775,
the States' power to act with respect to matters of local concern
is not necessarily superseded. But, in each case, the question is
one of congressional intent.
Compare H. P. Welch Co. v. New
Hampshire, supra, with Napier v. Atlantic Coast Line R. Co.,
272 U. S. 605. And
here we find not only a general intent to preempt the field, but
also the proviso to § 10(a), with its inescapable implication of
exclusiveness.
We are told by appellee that to deny the State jurisdiction here
will create a vast no-man's land, subject to regulation by no
agency or court. We are told by appellant that to grant
jurisdiction would produce confusion, and conflicts with federal
policy. Unfortunately, both may be right. We believe, however, that
Congress has expressed
Page 353 U. S. 11
its judgment in favor of uniformity. Since Congress' power in
the area of commerce among the States is plenary, its judgment must
be respected whatever policy objections there may be to creation of
a no-man's land.
Congress is free to change the situation at will. In 1954, the
Senate Committee on Labor and Public Welfare recognized the
existence of a no-man's land, and proposed an amendment which would
have empowered state courts and agencies to act upon the National
Board's declination of jurisdiction. [
Footnote 16] The Labor Board can greatly reduce the area
of the no-man's land by reasserting its jurisdiction, and, where
States have brought their labor laws into conformity with federal
policy, by ceding jurisdiction under § 10(a). [
Footnote 17] The testimony given by the Chairman
of the Board before the Appropriations Committees shortly before
the 1954 revisions of the jurisdictional standards indicates that
its reasons for making that change were not basically
Page 353 U. S. 12
budgetary. They had more to do with the Board's concept of the
class of cases to which it should devote its attention. [
Footnote 18]
The judgment of the Supreme Court of Utah is
Reversed.
MR. JUSTICE WHITTAKER took no part in the consideration or
decision of this case.
[
Footnote 1]
61 Stat. 146, 29 U.S.C. § 160(a).
[
Footnote 2]
49 Stat. 449, as amended, 61 Stat. 136, 29 U.S.C. § 151
et
seq.
[
Footnote 3]
§ 10(a), 49 Stat. 453, left unchanged in this particular by the
Taft-Hartley amendments, 61 Stat. 146, 29 U.S.C. § 160(a).
[
Footnote 4]
"The term 'affecting commerce' means in commerce, or burdening
or obstructing commerce or the free flow of commerce, or having led
or tending to lead to a labor dispute burdening or obstructing
commerce or the free flow of commerce."
§ 2(7), 49 Stat. 450, left unchanged by the Taft-Hartley
amendments, 61 Stat. 138, 29 U.S.C. § 152(7).
[
Footnote 5]
The NLRB's Press Release of October 6, 1950, can be found at 26
LRR Man. 50.
[
Footnote 6]
The NLRB's Press Release of July 15, 1954, can be found at 34
LRR Man. 75.
[
Footnote 7]
But see Labor Board v. Denver Building & Construction
Trades Council, 341 U. S. 675,
341 U. S.
684.
[
Footnote 8]
Members of the Board disagreed as to the impact of the revision.
See Breeding Transfer Co., 110 N.L.R.B. 493, 498-500,
506-508.
[
Footnote 9]
Among the cases in which courts have sustained state
jurisdiction where the Board declines or would decline jurisdiction
are
Garmon v. San Diego Building Trades
Council, 45 Cal. 2d
657, 291 P.2d 1;
Building Trades Council v. Bonito, 71
Nev. 84,
280 P.2d 295;
Hammer v. Local 211, United Textile Workers, 34 N.J.Super.
34,
111 A.2d 308;
Dallas General Drivers v. Jax Beer Co.,
Tex.Civ.App., 276 S.W.2d 384. On the other side are
Retail
Clerks v. Your Food Stores, 225 F.2d 659;
Universal Car
& Service Co. v. International Assn. of Machinists, 35 LRR
Man. 2087 (Mich.Cir.Ct.);
New York State Labor Board v. Wags
Transportation System, 130 N.Y.S.2d 731,
aff'd, 284
App.Div. 883, 134 N.Y.S.2d 603.
[
Footnote 10]
61 Stat. 140, 141, 29 U.S.C. § 158(a)(1, 3, 5).
[
Footnote 11]
Utah Code Ann.1953, 34-1-1 through 34-1-15.
[
Footnote 12]
5 Utah 2d 68,
296 P.2d 733.
[
Footnote 13]
The
Bethlehem decision was handed down April 7, 1947.
The proviso to § 10(a) first appeared when S. 1126, which contained
the substance of what was to become the Taft-Hartley Act, was
reported out of committee April 17.
See S.Rep. No. 105,
Pt. 2, 80th Cong., 1st Sess. 38.
[
Footnote 14]
S.Rep. No. 105, 80th Cong., 1st Sess. 26.
[
Footnote 15]
S.Rep. No. 105, Pt. 2, 80th Cong., 1st Sess. 38. The minority
members also said,
"We think the clarification of relations between the Federal and
State boards contemplated under section 10(a) a wise solution to a
complex problem."
Id. at 41.
See also S.Rep. No. 986, 80th
Cong., 2d Sess. 30-31.
[
Footnote 16]
"The effect . . . of the Board's policy of refusing to assert
its jurisdiction has been to create a legal vacuum or no-man's land
with respect to cases over which the Board, in its discretion, has
refused to assert jurisdiction. In these cases, the situation seems
to be that the Board will not assert jurisdiction, the States are
forbidden to do so, and the injured parties are deprived of any
forum in which to seek relief."
S.Rep. No. 1211, 83d Cong., 2d Sess. 18. The minority agreed
that,
"When the Federal Board refuses to take a case within its
jurisdiction, the State agencies or courts are nevertheless without
power to take jurisdiction, since the dispute is covered by the
Federal act, even though the Federal Board declines to apply the
act. There is thus a hiatus -- a no man's land -- in which the
Federal Board declines to exercise its jurisdiction and the State
agencies and courts have no jurisdiction."
Id., Pt. 2, P. 14. The Committee's bill, S. 2650, was
recommitted. 100 Cong.Rec. 6203.
[
Footnote 17]
The Labor Board has informed us in its brief
amicus
curiae in these cases that it has been unable, because of the
conditions prescribed by the proviso to § 10(a), to consummate any
cession agreements.
[
Footnote 18]
Hearings before Subcommittee of House Committee on
Appropriations, Department of Labor and Related Independent
Agencies, 83d Cong., 20 Sess. 309, 315, 323.
MR. JUSTICE BURTON, whom MR. JUSTICE CLARK joins, dissenting.
*
I believe the Court is mistaken in its interpretation of the
proviso which Congress added to § 10(a) of the National Labor
Relations Act in 1947. [
Footnote
2/1] It is my view that the proviso was added merely to make it
clear that
Page 353 U. S. 13
the Labor Board had the power, by making specific agreements, to
cede jurisdiction to state or territorial agencies over certain
labor disputes. Congress sought thereby to facilitate state
cooperation in the supervision of labor practices affecting
interstate commerce. The Court is not justified in interpreting
this action as evidencing an unexpressed and sweeping termination
of the States' preexisting power to deal with labor matters over
which the Board, for budgetary or other administrative reasons, has
declined, or obviously would decline, to exercise its full
jurisdiction.
The Labor Acts of 1935 and 1947 granted to the Board extensive
jurisdiction over labor controversies affecting interstate
commerce, but neither Act required the Board to assert at all times
the full measure of its jurisdiction. In each Act, the first
sentence of § 10(a) "empowered," but did not direct, the Board to
prevent unfair labor practices. Likewise, the first sentence of §
10(b) granted the "power," instead of imposing the duty, to issue
complaints upon receipt of appropriate charges. [
Footnote 2/2] The Board is not a court whose
jurisdiction over violations of private rights must be exercised.
It is an administrative agency whose function is to adjudicate
public rights in a manner that will effectuate the policies of the
Act.
See Amalgamated Utility Workers v. Consolidated Edison
Co., 309 U. S. 261.
From the beginning, budgetary limitations and other
administrative considerations have prevented the Board
Page 353 U. S. 14
from exercising jurisdiction over all cases in which interstate
commerce was affected. Congress knew this when, in 1947, it left
unchanged the discretionary language of § 10 and added the proviso
to § 10(a). Congress has consistently refrained from appropriating
funds sufficient to permit the Board to entertain all complaints
within its jurisdiction. In recent years, Congress has repeatedly
recognized the Board's jurisdictional practice. [
Footnote 2/3] In
Labor Board v. Denver Bldg.
& Trades Council, 341 U. S. 675,
341 U. S. 684,
this Court said that
"Even when the effect of activities on interstate commerce is
sufficient to enable the Board to take jurisdiction of a complaint,
the Board sometimes properly declines to do so, stating that the
policies of the Act would not be effectuated by its assertion of
jurisdiction in that case."
Courts of Appeals have approved the Board's practice [
Footnote 2/4] and none of the parties to
the instant cases question it.
Unless restricted by the proviso added to § 10(a), there is
title doubt that the States have the necessary power to act in
labor controversies within their borders, even when interstate
commerce is affected, provided the Federal Government has not
occupied the field and the National Board has not taken
jurisdiction. Where the Board has
Page 353 U. S. 15
declined, or obviously would decline, to take jurisdiction, then
federal power lies "dormant and unexercised."
Bethlehem Steel
Co. v. New York Labor Board, 330 U. S. 767,
330 U. S. 775.
Unless the proviso stands in their way, the States may then
exercise jurisdiction, since their action will not conflict with
the Board's administration of the Act. [
Footnote 2/5] Substantive provisions of the Act may
limit the action of the States.
See United Mine Workers v.
Arkansas Oak Flooring Co., 351 U. S. 62,
351 U. S. 75.
But the States are not deprived of all power to act. [
Footnote 2/6]
By this decision, the Court restricts the power of the State to
those labor disputes over which the National Board expressly cedes
its jurisdiction to the appropriate state agencies. However, the
proviso's requirements are so highly restrictive that not a single
cession has been made under it. [
Footnote 2/7] The result of this decision is the
creation
Page 353 U. S. 16
of an extensive no-man's land within which no federal or state
agency or court is empowered to deal with labor controversies. It
is difficult to believe that Congress,
sub silentio,
intended to take such a step backward in the field of labor
relations.
The immediate occasion that led to the enactment of the proviso
throws light on its proper interpretation. That occasion was this
Court's decision in the
Bethlehem case, supra, where it
was held that a State Board did not have jurisdiction to certify a
union of foremen as a collective bargaining agency because the
National Board, by asserting general jurisdiction over foremen's
unions, had occupied the field. [
Footnote 2/8] Although an agreement had been negotiated
between the National Board and the State Board ceding jurisdiction
over certain labor matters, this Court concluded that the agreement
did not cede jurisdiction over foremen's unions. Three Justices
decried certain overtones they found in the opinion of the Court to
the effect that the National Board lacked authority to cede
jurisdiction over predominantly local labor matters
Page 353 U. S. 17
by agreement with state agencies. It was to clarify the power of
the National Board to make such a cession that the proviso was
added to § 10(a).
While the proviso thus evidenced a congressional purpose to
encourage state action, there is no indication that it was intended
to wipe out, by implication, the States' recognized power to act
when the National Board declined to take jurisdiction. Neither the
language of the proviso nor its legislative history discloses a
conscious congressional intent to eliminate state authority when
the National Board has declined to act. Unequivocal legislative
history would be necessary to sustain a conclusion that Congress
intended such a drastic result. In the
Bethlehem case,
supra, the Court did not question the authority of the States
to act when the Board, for budgetary or other administrative
reasons, declined to exercise its full jurisdiction. The Court
expressly refrained from passing on that question, [
Footnote 2/9] but three Justices said that they
found in the opinion of the Court a
"suggestion that the National Board's declination of
jurisdiction 'in certain types of cases, for budgetary or other
reasons' might leave room for the State in those situations. . .
."
330 U.S. at
330 U. S.
778.
As a matter of fact, in 1947, nearly 40 States lacked labor
agencies and comprehensive labor legislation. [
Footnote 2/10]
Page 353 U. S. 18
Obviously, those States were ineligible to take advantage of the
proviso. It is hard to imagine that Congress meant to make the
proviso the exclusive channel for state jurisdiction when so many
States would be automatically excluded from using it. The full
mission of the proviso was to supply the National Board with
express authority to cede jurisdiction over labor disputes by
agreement where, as a matter of deliberate judgment, it concluded
that due regard for local interests made that course desirable. The
Board's jurisdictional yardsticks always have reflected its need to
distribute its limited resources so as best to effectuate the
policies of the Act. The Board does not "cede" jurisdiction when it
declines to exercise its full jurisdiction -- it merely allows the
States to exercise their pre-existing authority. [
Footnote 2/11]
The Court's interpretation of the proviso is contrary to the
established practice of the States and of the National Board, as
well as to the considered position taken by the Board as
amicus
curiae. Congress has demonstrated a continuing and deep
interest in providing governmental machinery for handling labor
controversies. The creation by it of a large, unsupervised no-man's
land flies in the face of that policy. Due regard for our federal
system suggests that all doubts on this score should be resolved in
favor of a conclusion that would not leave the States
Page 353 U. S. 19
powerless when the federal agency declines to exercise its
jurisdiction. As three Justices said in the
Bethlehem
case,
supra:
"Since Congress can, if it chooses, entirely displace the States
to the full extent of the far-reaching Commerce Clause, Congress
needs no help from generous judicial implications to achieve the
supersession of State authority. To construe federal legislation so
as not needlessly to forbid preexisting State authority is to
respect our federal system. Any indulgence in construction should
be in favor of the States, because Congress can speak with drastic
clarity whenever it chooses to assure full federal authority,
completely displacing the States."
330 U.S. at
330 U. S.
780.
I would sustain the jurisdiction of the respective States in
these cases.
* [NOTE: This dissenting opinion applies also to No. 41,
Amalgamated Meat Cutters v. Fairlawn Meats, Inc., post, p.
353 U. S. 20, and
No. 50,
San Diego Building Trades Council v. Garmon, post,
p.
353 U. S. 26.]
[
Footnote 2/1]
Section 10(a) of the National Labor Relations Act of 1935, 49
Stat. 453, was amended by the Labor Management Relations Act of
1947 by the addition of the proviso shown below:
"Section 10(a). The Board is empowered, as hereinafter provided,
to prevent any person from engaging in any unfair labor practice
(listed in section 8) affecting commerce. This power shall not be
affected by any other means of adjustment or prevention that has
been or may be established by agreement, law, or otherwise:
Provided, That the Board is empowered by agreement with
any agency of any State or Territory to cede to such agency
jurisdiction over any cases in any industry (other than mining,
manufacturing, communications, and transportation except where
predominantly local in character) even though such cases may
involve labor disputes affecting commerce, unless the provision of
the State or Territorial statute applicable to the determination of
such cases by such agency is inconsistent with the corresponding
provision of this Act or has received a construction inconsistent
therewith."
61 Stat. 146, 29 U.S.C. § 160(a).
[
Footnote 2/2]
"(b) Whenever it is charged that any person has engaged in or is
engaging in any such unfair labor practice, the Board or any agent
or agency designated by the Board for such purposes, shall have
power to issue and cause to be served upon such person a complaint
stating the charges in that respect, the containing a notice of
hearing before the Board or a member thereof, or before a
designated agent or agency at a place therein fixed, not less than
five days after the serving of said complaint. . . ."
49 Stat. 453, 61 Stat. 146, 29 U.S.C. § 160(b).
[
Footnote 2/3]
See Report of the Joint Committee on Labor-Management
Relations, S.Rep. No. 986, Pt. 3, 80th Cong., 2d Sess. 11-15;
S.Rep. No. 99, 81st Cong., 1st Sess. 40; H.R.Rep. No. 1852, 81st
Cong., 2d Sess. 10; Hearings before Senate Committee on Labor and
Public Welfare on S. 249, Pt. 1, 81st Cong., 1st Sess. 175-177;
Hearings before Senate Committee on Expenditures in the Executive
Departments on S.Res. 248, 81st Cong., 2d Sess. 40, 120.
[
Footnote 2/4]
E.g., Optical Workers' Union Local 24859 v. Labor
Board, 227 F.2d 687;
Local Union No. 12, Progressive Mine
Workers of America v. Labor Board, 189 F.2d 1;
Haleston
Drug Stores v. Labor Board, 187 F.2d 418.
See Labor Board
v. Indiana & Michigan Electric Co., 318 U. S.
9,
318 U. S. 18-19.
The Board discusses its jurisdictional practice in
Breeding
Transfer Co., 110 N.L.R.B. 493.
See also Note,
Discretionary Administrative Jurisdiction of the NLRB Under the
Taft-Hartley Act, 62 Yale L.J. 116 (1952).
[
Footnote 2/5]
". . . The care we took in the
Garner
case [
346 U.S.
485] to demonstrate the existing conflict between state and
federal administrative remedies in that case was, itself, a
recognition that, if no conflict had existed, the state procedure
would have survived."
United Construction Workers v. Laburnum Construction
Corp., 347 U. S. 656,
347 U. S. 665.
See also Weber v. Anheuser-Busch, Inc., 348 U.
S. 468,
348 U. S.
479-480.
[
Footnote 2/6]
See Southern Pacific Co. v. Arizona ex rel. Sullivan,
325 U. S. 761;
Terminal Railroad Assn. v. Brotherhood of Railroad
Trainmen, 318 U. S. 1;
H.
P. Welch Co. v. New Hampshire, 306 U. S.
79;
Northwestern Bell Telephone Co. v. Nebraska
State Railway Commission, 297 U. S. 471;
Missouri Pacific R. Co. v. Larable Flour Mills Co.,
211 U. S. 612.
[
Footnote 2/7]
The Labor Board in its brief filed in these cases states that
--
"It should be noted here that the Board has been unable, because
of the prescribed conditions, to consummate any such agreements.
Congress has been aware of this situation and considered the
feasibility of deleting these conditions in order to reduce the
tremendous volume of cases brought before the Board. S.Rep.No. 986,
Joint Committee Report, 80th Cong., 2d Sess., 31 (1948). Congress,
however, has taken no action in this regard. The advocates of
federal preemption argue from this post-legislative history that
Congress has thereby manifested its intent to preclude State action
in the absence of cession by the Board. Precisely what inference
may be drawn from such Congressional inaction is, in our judgment,
wholly speculative."
[
Footnote 2/8]
". . . It [the National Board] made clear that its refusal to
designate foremen's bargaining units was a determination and an
exercise of its discretion to determine that such units were not
appropriate for bargaining purposes.
Maryland Drydock Co.,
49 N.L.R.B. 733. We cannot, therefore, deal with this as a case
where federal power has been delegated but lies dormant and
unexercised."
"
* * * *"
". . . The federal board has jurisdiction of the industry in
which these particular employers are engaged and has asserted
control of their labor relations in general. It asserts, and
rightfully so, under our decision in the
Packard
case,
supra [
330 U.S.
485], its power to decide whether these foremen may constitute
themselves a bargaining unit. We do not believe this leaves room
for the operation of the state authority asserted."
330 U.S. at
330 U. S.
775-776.
[
Footnote 2/9]
"The National and State Boards have made a commendable effort to
avoid conflict in this overlapping state of the statutes. We find
nothing in their negotiations, however, which affects either the
construction of the federal statute or the question of
constitutional power insofar as they are involved in this case,
since the National Board made no concession or delegation of power
to deal with this subject. The election of the National Board to
decline jurisdiction in certain types of cases, for budgetary or
other reasons, presents a different problem which we do not now
decide."
330 U.S. at
330 U. S.
776.
[
Footnote 2/10]
In 1947, only 11 States had comprehensive labor statutes. Of
those, eight had established an administrative procedure for the
adjudication of unfair labor practices, while three had left these
matters to conventional law enforcement agencies -- prosecuting
attorneys and regular courts.
See Killingsworth, State
Labor Relations Acts (1948), 1-3, 111-112. Labor legislation in the
other 37 States was fragmentary. Killingsworth said of these
laws
"that they are aimed exclusively at one or a few union
practices, place few or no restrictions on employers, and do not
attempt to establish a comprehensive labor relations policy."
Id. at 3.
[
Footnote 2/11]
When, in 1954, the Board revised upward its jurisdictional
yardsticks, it stated that "a desire to establish broader State
jurisdiction is in no wise a factor in our decision."
Breeding
Transfer Co., 110 N.L.R.B. 493, 497.