Although the National Labor Relations Board had declined to
exercise jurisdiction, a California state court was precluded by
the National Labor Relations Act from awarding damages to
respondents under state law for economic injuries resulting from
the peaceful picketing of their plant by labor unions which had not
been selected by a majority of respondents' employees as their
bargaining agents. Pp.
359 U. S.
237-248.
(a) When an activity arguably subject to § 7 or § 8 of the
National Labor Relations Act, as was the picketing here involved,
the States, as well as the federal courts, must defer to the
exclusive competence of the National Labor Relations Board. P.
359 U. S.
245.
(b) Failure of the National Labor Relations Board to assume
jurisdiction does not leave the States free to regulate activities
they would otherwise be precluded from regulating. Pp.
359 U. S.
245-246.
(c) Since the National Labor Relations Board has not adjudicated
the status of the conduct here involved, and since such activity is
arguably within the compass of § 7 or § 8 of the Act, the State's
jurisdiction is displaced. P.
359 U. S.
246.
(d) A different conclusion is not required by the fact that all
that is involved here is an attempt by the State to award damages,
since state regulation can be as effectively exerted through an
award of damages as through some form of preventive relief. Pp.
359 U. S.
246-247.
(e)
United Automobile Workers v. Russell, 356 U.
S. 634, and
United Construction Workers v. Laburnum
Corp., 347 U. S. 656,
distinguished. Pp.
359 U. S.
247-248.
49 Cal. 2d
595, 320 P.2d 473, reversed.
Page 359 U. S. 237
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This case is before us for the second time. The present
litigation began with a dispute between the petitioning unions and
respondents, co-partners in the business of selling lumber and
other materials in California. Respondents began an action in the
Superior Court for the County of San Diego, asking for an
injunction and damages. Upon hearing, the trial court found the
following facts. In March of 1953, the unions sought from
respondents an agreement to retain in their employ only those
workers who were already members of the unions, or who applied for
membership within thirty days. Respondents refused, claiming that
none of their employees had shown a desire to join a union, and
that, in any event, they could not accept such an arrangement until
one of the unions had been designated by the employees as a
collective bargaining agent. The unions began at once peacefully to
picket the respondents' place of business, and to exert pressure on
customers and suppliers in order to persuade them to stop dealing
with respondents. The sole purpose of these pressures was to compel
execution of the proposed contract. The unions contested this
finding, claiming that the only purpose of their activities was to
educate the workers and persuade them to become members. On the
basis of its findings, the court enjoined the unions from picketing
and from the use of other pressures to force an agreement, until
one of
Page 359 U. S. 238
them had been properly designated as a collective bargaining
agent. The court also awarded $1,000 damages for losses found to
have been sustained.
At the time the suit in the state court was started, respondents
had begun a representation proceeding before the National Labor
Relations Board. The Regional Director declined jurisdiction,
presumably because the amount of interstate commerce involved did
not meet the Board's monetary standards in taking jurisdiction.
On appeal, the California Supreme Court sustained the judgment
of the Superior Court,
45 Cal. 2d
657, 291 P.2d 1, holding that, since the National Labor
Relations Board had declined to exercise its jurisdiction, the
California courts had power over the dispute. They further decided
that the conduct of the union constituted an unfair labor practice
under § 8(b)(2) of the National Labor Relations Act, and hence was
not privileged under California law. As the California court itself
later pointed out, this decision did not specify what law, state or
federal, was the basis of the relief granted. Both state and
federal law played a part but, "[a]ny distinction as between those
laws was not thoroughly explored."
Garmon v. San Diego Bldg.
Trades Council, 49 Cal. 2d
595, 602, 320 P.2d 473, 477.
We granted certiorari, 351 U.S. 923, and decided the case
together with
Guss v. Utah Labor Relations Board,
353 U. S. 1, and
Amalgamated Meat Cutters, etc. v. Fairlawn Meats, Inc.,
353 U. S. 20. In
those cases, we held that the refusal of the National Labor
Relations Board to assert jurisdiction did not leave with the
States power over activities they otherwise would be preempted from
regulating. Both
Guss and
Fairlawn involved
relief of an equitable nature. In vacating and remanding the
judgment of the California court in this case, we pointed out that
those cases controlled this one "in its major aspects." 353 U.S. at
353 U. S. 28.
However, since it was not clear whether the
Page 359 U. S. 239
judgment for damages would be sustained under California law, we
remanded to the state court for consideration of that local law
issue. The federal question, namely, whether the National Labor
Relations Act precluded California from granting an award for
damages arising out of the conduct in question, could not be
appropriately decided until the antecedent state law question was
decided by the state court.
On remand, the California court, in accordance with our decision
in
Guss, set aside the injunction, but sustained the award
of damages.
Garmon v. San Diego Bldg. Trades
Council, 49 Cal. 2d
595, 320 P.2d 473 (three judges dissenting). After deciding
that California had jurisdiction to award damages for injuries
caused by the union's activities, the California court held that
those activities constituted a tort based on an unfair labor
practice under state law. In so holding, the court relied on
general tort provisions of the California Civil Code, §§ 1667,
1708, as well as state enactments dealing specifically with labor
relations, Calif. Labor Code, § 923 (1937);
ibid., §§
1115-1118 (1947).
We again granted certiorari, 357 U.S. 925, to determine whether
the California court had jurisdiction to award damages arising out
of peaceful union activity which it could not enjoin.
The issue is a variant of a familiar theme. It began with
Allen-Bradley v. Wisconsin Board, 315 U.
S. 740, was greatly intensified by litigation flowing
from the Taft-Hartley Act, and has recurred here in almost a score
of cases during the last decade. The comprehensive regulation of
industrial relations by Congress, novel federal legislation
twenty-five years ago but now an integral part of our economic
life, inevitably gave rise to difficult problems of federal-state
relations. To be sure, in the abstract, these problems came to us
as ordinary questions of statutory construction. But they involved
a more complicated
Page 359 U. S. 240
and perceptive process than is conveyed by the delusive phrase,
"ascertaining the intent of the legislature." Many of these
problems probably could not have been, at all events were not,
foreseen by the Congress. Others were only dimly perceived, and
their precise scope only vaguely defined. This Court was called
upon to apply a new and complicated legislative scheme, the aims
and social policy of which were drawn with broad strokes, while the
details had to be filled in, to no small extent, by the judicial
process. Recently we indicated the task that was thus cast upon
this Court in carrying out with fidelity the purposes of Congress,
but doing so by giving application to congressional incompletion.
What we said in
Weber v. Anheuser-Busch, Inc.,
348 U. S. 468,
deserves repetition, because the considerations there outlined
guide this day's decision:
"By the Taft-Hartley Act, Congress did not exhaust the full
sweep of legislative power over industrial relations given by the
Commerce Clause. Congress formulated a code whereby it outlawed
some aspects of labor activities and left others free for the
operation of economic forces. As to both categories, the areas that
have been preempted by federal authority, and thereby withdrawn
from state power, are not susceptible of delimitation by fixed
metes and bounds. Obvious conflict, actual or potential, leads to
easy judicial exclusion of state action. Such was the situation in
Garner v. Teamsters Union, supra. But as the opinion in
that case recalled, the Labor Management Relations Act 'leaves much
to the states, though Congress has refrained from telling us how
much.' 346 U.S. at
346 U. S. 488. This
penumbral area can be rendered progressively clear only by the
course of litigation."
348 U.S. at
348 U. S.
480-481.
Page 359 U. S. 241
The case before us concerns one of the most teasing and
frequently litigated areas of industrial relations, the multitude
of activities regulated by §§ 7 and 8 of the National Labor
Relations Act. 61 Stat. 140, 29 U.S.C. §§ 157, 158. These broad
provisions govern both protected "concerted activities" and unfair
labor practices. They regulate the vital, economic instruments of
the strike and the picket line, and impinge on the clash of the
still unsettled claims between employers and labor unions. The
extent to which the variegated laws of the several States are
displaced by a single, uniform, national rule has been a matter of
frequent and recurring concern. As we pointed out the other
day,
"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."
International Ass'n of Machinists v. Gonzales,
356 U. S. 617,
356 U. S.
619.
In the area of regulation with which we are here concerned, the
process thus described has contracted initial ambiguity and doubt
and established guides for judgment by interested parties and
certainly guides for decision. We state these principles in full
realization that, in the course of a process of tentative,
fragmentary illumination carried on over more than a decade during
which the writers of opinions almost inevitably, because
unconsciously, focus their primary attention on the facts of
particular situations, language may have been used or views implied
which do not completely harmonize with the clear pattern which the
decisions have evolved. But it may safely be claimed that the basis
and purport of a long series of adjudications have "translated into
concreteness" the consistently applied principles which decide this
case.
In determining the extent to which state regulation must yield
to subordinating federal authority, we have
Page 359 U. S. 242
been concerned with delimiting areas of potential conflict --
potential conflict of rules of law, of remedy, and of
administration. The nature of the judicial process precludes an
ad hoc inquiry into the special problems of
labor-management relations involved in a particular set of
occurrences in order to ascertain the precise nature and degree of
federal-state conflict there involved, and more particularly what
exact mischief such a conflict would cause. Nor is it our business
to attempt this. Such determinations inevitably depend upon
judgments on the impact of these particular conflicts on the entire
scheme of federal labor policy and administration. Our task is
confined to dealing with classes of situations. To the National
Labor Relations Board and to Congress must be left those precise
and closely limited demarcations that can be adequately fashioned
only by legislation and administration. We have necessarily been
concerned with the potential conflict of two law-enforcing
authorities, with the disharmonies inherent in two systems, one
federal the other state, of inconsistent standards of substantive
law and differing remedial schemes. But the unifying consideration
of our decisions has been regard to the fact that Congress has
entrusted administration of the labor policy for the Nation to a
centralized administrative agency, armed with its own procedures
and equipped with its specialized knowledge and cumulative
experience:
"Congress did not merely lay down a substantive rule of law to
be enforced by any tribunal competent to apply law generally to the
parties. It went on to confide primary interpretation and
application of its rules to a specific and specially constituted
tribunal and prescribed a particular procedure for investigation,
complaint and notice, and hearing and decision, including judicial
relief pending a final administrative order. Congress evidently
considered that centralized administration of specially designed
procedures
Page 359 U. S. 243
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 towards labor
controversies. . . . 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. . . ."
Garner v. Teamsters Union, 346 U.
S. 485,
346 U. S.
490-491.
Administration is more than a means of regulation;
administration is regulation. We have been concerned with conflict
in its broadest sense -- conflict with a complex and interrelated
federal scheme of law, remedy, and administration. Thus, judicial
concern has necessarily focused on the nature of the activities
which the States have sought to regulate, rather than on the method
of regulation adopted. When the exercise of state power over a
particular area of activity threatened interference with the
clearly indicated policy of industrial relations, it has been
judicially necessary to preclude the States from acting. [
Footnote 1] However, due regard for the
presuppositions of our embracing federal system, including the
principle of diffusion of power not as a matter of doctrinaire
localism, but as a promoter of democracy, has required us not to
find withdrawal from the States of power to regulate where the
activity regulated was a merely peripheral concern of the Labor
Management Relations Act.
See International
Page 359 U. S. 244
Ass'n of Machinists v. Gonzales, 356 U.
S. 617. Or where the regulated conduct 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.
[
Footnote 2]
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. Nor has
it mattered whether the States have acted through laws of broad
general application, rather than laws specifically directed towards
the governance of industrial relations. [
Footnote 3] Regardless of the mode adopted, to allow
the States to control conduct which is the subject of national
regulation would create potential frustration of national
purposes.
At times, it has not been clear whether the particular activity
regulated by the States was governed by § 7 or § 8 or was, perhaps,
outside both these sections. But courts are not primary tribunals
to adjudicate such issues. It is essential to the administration of
the Act that these determinations be left in the first instance to
the National
Page 359 U. S. 245
Labor Relations Board. What is outside the scope of this Court's
authority cannot remain within a State's power and state
jurisdiction too must yield to the exclusive primary competence of
the Board.
See, e.g., Garner v. Teamsters Union,
346 U. S. 485,
especially at
346 U. S.
489-491;
Weber v. Anheuser-Busch, Inc.,
348 U. S. 468.
The case before us is such a case. The adjudication in
California has throughout been based on the assumption that the
behavior of the petitioning unions constituted an unfair labor
practice. This conclusion was derived by the California courts from
the facts as well as from their view of the Act. It is not for us
to decide whether the National Labor Relations Board would have, or
should have, decided these questions in the same manner. 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.
To require the States to yield to the primary jurisdiction of
the National Board does not ensure Board adjudication of the status
of a disputed activity. If the Board decides, subject to
appropriate federal judicial review, that conduct is protected by §
7, or prohibited by § 8, then the matter is at an end, and the
States are ousted of all jurisdiction. Or the Board may decide that
an activity is neither protected nor prohibited, and thereby raise
the question whether such activity may be regulated by the States.
[
Footnote 4] However, the Board
may also fail to determine the status of the disputed conduct by
declining to assert jurisdiction, or by refusal of the General
Counsel to file
Page 359 U. S. 246
a charge, or by adopting some other disposition which does not
define the nature of the activity with unclouded legal
significance. This was the basic problem underlying our decision in
Guss v. Utah Labor Relations Board, 353 U. S.
1. In that case, we held that the failure of the
National Labor Relations Board to assume jurisdiction did not leave
the States free to regulate activities they would otherwise be
precluded from regulating. It follows that the failure of the Board
to define the legal significance under the Act of a particular
activity does not give the States the power to act. In the absence
of the Board's clear determination that an activity is neither
protected nor prohibited or of compelling precedent applied to
essentially undisputed facts, it is not for this Court to decide
whether such activities are subject to state jurisdiction. The
withdrawal of this narrow area from possible state activity follows
from our decisions in
Weber and
Guss. The
governing consideration is that to allow the States to control
activities that are potentially subject to federal regulation
involves too great a danger of conflict with national labor policy.
[
Footnote 5]
In the light of these principles the case before us is clear.
Since the National Labor Relations Board has not adjudicated the
status of the conduct for which the State of California seeks to
give a remedy in damages, and since such activity is arguably
within the compass of § 7 or § 8 of the Act, the State's
jurisdiction is displaced.
Nor is it significant that California asserted its power to give
damages rather than to enjoin what the Board may restrain though it
could not compensate. Our concern is with delimiting areas of
conduct which must be free from state regulation if national policy
is to be left unhampered.
Page 359 U. S. 247
Such regulation can be as effectively exerted through an award
of damages as through some form of preventive relief. The
obligation to pay compensation can be, indeed is designed to be, a
potent method of governing conduct and controlling policy. Even the
States' salutary effort to redress private wrongs or grant
compensation for past harm cannot be exerted to regulate activities
that are potentially subject to the exclusive federal regulatory
scheme.
See Garner v. Teamsters Union, 346 U.
S. 485,
346 U. S.
492-497. It may be that an award of damages in a
particular situation will not, in fact, conflict with the active
assertion of federal authority. The same may be true of the
incidence of a particular state injunction. To sanction either
involves a conflict with federal policy in that it involves
allowing two law-making sources to govern. In fact, since remedies
form an ingredient of any integrated scheme of regulation, to allow
the State to grant a remedy here which has been withheld from the
National Labor Relations Board only accentuates the danger of
conflict.
It is true that we have allowed the States to grant compensation
for the consequences, as defined by the traditional law of torts,
of conduct marked by violence and imminent threats to the public
order.
United Automobile Workers v. Russell, 356 U.
S. 634;
United Construction Workers v. Laburnum
Corp., 347 U. S. 656. We
have also allowed the States to enjoin such conduct.
Youngdahl
v. Rainfair, 355 U. S. 131;
Auto Workers v. Wisconsin Board, 351 U.
S. 266. State jurisdiction has prevailed in these
situations because the compelling state interest, in the scheme of
our federalism, in the maintenance of domestic peace is not
overridden in the absence of clearly expressed congressional
direction. We recognize that the opinion in
United Construction
Workers v. Laburnum Corp., 347 U. S. 656,
found support in the fact that the state remedy had no federal
counterpart. But that decision
Page 359 U. S. 248
was determined, as is demonstrated by the question to which
review was restricted, by the "type of conduct" involved,
i.e., "intimidation and threats of violence." [
Footnote 6] In the present case, there
is no such compelling state interest.
The judgment below is reversed.
Reversed.
Page 359 U. S. 249
[
Footnote 1]
E.g., Guss v. Utah Labor Relations Board, 353 U. S.
1;
Youngdahl v. Rainfair, Inc., 355 U.
S. 131;
Teamsters Union v. New York, N.H. & H.R.
Co., 350 U. S. 155;
Weber v. Anheuser-Busch, Inc., 348 U.
S. 468;
Garner v. Teamsters, etc. Union,
346 U. S. 485;
Automobile Workers v. O'Brien, 339 U.
S. 454;
Amalgamated Ass'n of Street, Electric R. and
Motor Coach Employees, etc. v. Wisconsin Board, 340 U.
S. 383;
Hill v. State of Florida, 325 U.
S. 538.
See Teamsters Union v. Oliver,
358 U. S. 283. The
cases up to that time are summarized in
Weber v.
Anheuser-Busch, Inc., 348 U. S. 468.
[
Footnote 2]
United Automobile Workers v. Russell, 356 U.
S. 634;
Youngdahl v. Rainfair, Inc.,
355 U. S. 131;
Auto Workers v. Wisconsin Board, 351 U.
S. 266;
United Construction Workers v. Laburnum
Corp., 347 U. S. 656.
[
Footnote 3]
See Weber v. Anheuser-Busch, Inc., 348 U.
S. 468, in which it was pointed out that the state court
had relied on a general restraint of trade statute.
Cf. Auto
Workers v. Wisconsin Board, 351 U. S. 266. The
case before us involves both tort law of general application and
specialized labor relations statutes.
See p.
359 U. S. 239,
supra.
[
Footnote 4]
See Auto Workers v. Wisconsin Board, 336 U.
S. 245. The approach taken in that case, in which the
Court undertook for itself to determine the status of the disputed
activity, has not been followed in later decisions, and is no
longer of general application.
[
Footnote 5]
"When Congress has taken the particular subject matter in hand,
coincidence is as ineffective as opposition. . . ."
Charleston
and Western Carolina R. Co. v. Varnville Furniture Co.,
237 U. S. 597,
237 U. S.
604.
[
Footnote 6]
The conduct involved in
Laburnum was so characterized
in
United Automobile Workers v. Russell, 356 U.
S. 634,
356 U. S. 640,
in an opinion by Mr Justice Burton, who also wrote the opinion of
the Court in
Laburnum. When this very case was before us
for the first time, we noted that
"
Laburnum sustained an award of damages under state
tort law for violent conduct. We cannot know that the California
court would have interpreted its own state law to allow an award of
damages in this situation."
353 U.S. at
353 U. S.
29.
In
Laburnum, this Court itself expressly phrased its
grant of certiorari to include only the limited question of the
State's jurisdiction to award damages "[i]n view of the type of
conduct found by the Supreme Court of Appeals of Virginia to have
been carried our by Petitioners . . . ," 346 U.S. 936, despite the
fact that petitioners had urged upon us a question not limited to
the particular conduct involved. Petition for certiorari, p. 6.
Throughout, the opinion of the Court makes it clear that the
holding in favor of state jurisdiction was limited to a situation
involving violence and threats of violence. Thus, the findings of
the Virginia court as to the flagrant and violent activities of
petitioners were set out at length. 347 U.S. at pages
347 U. S.
660-662, note 4. The Court relies on statements by
Senator Taft, the Act's sponsor, and from a Senate Report which
point out that "mass picketing," "violence," "threat[s] of
violence," may be a violation of state law, as well as unfair labor
practices under the Act. 347 U.S. at page
347 U. S.
668.
The Court in
Laburnum points out that it would be
inconsistent with the provisions of the Act which allow recovery
for damages caused by secondary boycotts, not to allow an injured
party "to recover damages caused more directly and flagrantly
through such conduct as is before us." 347 U.S.
347 U. S. 666.
The Court also placed reliance on a quotation from
International Union v. Wisconsin Board, 336 U.
S. 245,
336 U. S. 253,
which points out that the "[p]olicing of . . . conduct . . . ,"
which consists of "actual or threatened violence to persons or
destruction of property," is left to the States. In its concluding
paragraph, the Court again stresses that Virginia has jurisdiction
over "coercion of the type found here. . . ." 347 U.S. at
347 U. S.
668.
The damages awarded were extensive, consisting primarily of loss
of profits caused by the disruption of respondent's business
resulting from the violence. These damages were restricted to the
"damages directly and proximately caused by wrongful conduct
chargeable to the defendants . . . " as defined by the traditional
law of torts.
United Construction Workers v. Laburnum Const.
Corp., 194 Va. 872, 887, 75 S.E.2d 694, 704. Thus, there is
nothing in the measure of damages to indicate that state power was
exerted to compensate for anything more than the direct
consequences of the violent conduct.
All these factors make it plain that our decision in
Laburnum rested on the nature of the activities there
involved and the interest of the State in regulating them. The case
has been so interpreted in later decisions of this Court.
See
Weber v. Anheuser-Busch, Inc., 348 U.
S. 468,
348 U. S. 477;
and the phrases quoted from
Russell, supra. In
Russell, we again allowed the State to award damages for
injuries caused by "mass picketing and threats of violence . . . ,"
356 U.S. at
356 U. S. 638.
That opinion also continually stresses the violent nature of the
conduct, and limits its decision to the "kind of tortious conduct"
there involved. 356 U.S. at
356 U. S. 646.
See also 356 U.S. at
356 U. S. 642
and 356 U.S. at
356 U. S. 640,
where the Court points out that Alabama could have enjoined the
activities of the union.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK, MR. JUSTICE
WHITTAKER and MR. JUSTICE STEWART join, concurring.
I concur in the result upon the narrow ground that the Unions'
activities for which the State has awarded damages may fairly be
considered protected under the Taft-Hartley Act, and that therefore
state action is precluded until the National Labor Relations Board
has made a contrary determination respecting such activities. As
the Court points out, it makes no difference that the Board has
declined to exercise its jurisdiction.
See Guss v. Utah Labor
Relations Board, 353 U. S. 1;
Meat Cutters, etc. v. Fairlawn Meats, Inc., 353 U. S.
20; and our earlier opinion in the present case when it
was first before us, 353 U.S.
353 U. S. 26.
Page 359 U. S. 250
Were nothing more than this particular case involved, I would be
content to rest my concurrence at this point without more. But as
today's decision will stand as a landmark in future "preemption"
cases in the labor field, I feel justified in particularizing why I
cannot join the Court's opinion.
If it were clear that the Unions' conduct here was unprotected
activity under Taft-Hartley, I think that
United Constr.
Workers v. Laburnum Constr. Corp., 347 U.
S. 656, and
Automobile Workers v. Russell,
356 U. S. 634,
would require that the California judgment be sustained, even
though such conduct might be deemed to be federally prohibited. In
both these cases, state tort damage judgments against unions were
upheld in respect of conduct which this Court assumed was
prohibited activity under the Federal Labor Act. The Court now
says, however, that those decisions are not applicable here,
because they were premised on violence, which the States could also
have enjoined,
Automobile Workers v. Wisconsin Board,
351 U. S. 266,
whereas, in this case, the Unions' acts were peaceful. In this I
think the Court mistaken.
The threshold question in every labor preemption case is whether
the conduct with respect to which a State has sought to act is, or
may fairly be regarded as, federally protected activity. Because
conflict is the touchstone of preemption, such activity is
obviously beyond the reach of all state power.
Hill v.
Florida, 325 U. S. 538;
Automobile Workers v. O'Brien, 339 U.
S. 454;
Motor Coach Employees v. Wisconsin
Board, 340 U. S. 383.
That threshold question was squarely faced in the
Russell
case, where the Court, 356 U.S. at
356 U. S. 640,
said: "At the outset, we note that the union's activity in this
case clearly was not protected by federal law." The same question
was, in my view, necessarily faced in
Laburnum.
In both cases, it was possible to decide that question without
prior reference to the National Labor Relations
Page 359 U. S. 251
Board because the union conduct involved was violent, and, as
such, was of course not protected by the federal Act. Thus in
Laburnum, the preemption issue was limited to the "type of
conduct" before the Court. 347 U.S. at
347 U. S. 658.
Similarly, in
Russell, which was decided on
Laburnum principles, the Court stated that the union's
activity "clearly was not protected," and immediately went on to
say (citing prior "violence" cases [
Footnote 2/1]) that "the strike was conducted in such a
manner that it could have been enjoined" by the State. 356 U.S. at
356 U. S. 640.
In both instances the Court, in reliance on former "violence" cases
involving injunctions, [
Footnote
2/2] might have gone on to hold, as the Court now in effect
says it did, that the state police power was not displaced by the
federal Act, and thus disposed of the cases on the ground that
state damage awards, like state injunctions, based on violent
conduct did not conflict with the federal statute. The Court did
not do this, however.
Instead, the relevance of violence was manifestly deemed
confined to rendering the
Laburnum and
Russell
activities federally unprotected. So rendered, they could then only
have been classified as prohibited or "neither protected nor
prohibited." If the latter, state jurisdiction was beyond
challenge.
Automobile Workers v. Wisconsin Board,
336 U. S. 245.
[
Footnote 2/3] Conversely, if the
activities could have been considered prohibited, primary decision
by the Board would have been necessary, if state damage awards were
inconsistent with federal prohibitions.
Garner v. Teamsters
Union, 346 U. S. 485. To
determine the need for initial reference to the Board, the Court
assumed that the activities were unfair labor practices prohibited
by the
Page 359 U. S. 252
federal Act.
Laburnum, supra, at
347 U. S.
660-663;
Russell, supra, at
356 U. S. 641.
It then considered the possibility of conflict and held that the
state damage remedies were not preempted because the federal Act
afforded no remedy at all for the past conduct involved in
Laburnum, and less than full redress for that involved in
Russell. The essence of the Court's holding, which made
resort to primary jurisdiction unnecessary, is contained in the
following passage from the opinion in
Laburnum, supra, 347
U.S. at
347 U. S. 665
(also quoted in
Russell, supra, at
356 U. S.
644):
"To the extent that Congress prescribed preventive procedure
against unfair labor practices, that case (
Garner v. Teamsters
Union, supra) recognized that the Act excluded conflicting
state procedure to the same end. To the extent, however, that
Congress has not prescribed procedure for dealing with the
consequences of tortious conduct already committed, there is no
ground for concluding that existing criminal penalties or
liabilities for tortious conduct have been eliminated. The care we
took in the
Garner case 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."
Until today, this holding of
Laburnum has been
recognized by subsequent cases.
See Weber v. Anheuser-Busch,
Inc., 348 U. S. 468,
348 U. S. 477;
Automobile Workers v. Russell, supra, at
356 U. S. 640,
356 U. S. 641,
356 U. S. 644;
International Ass'n of Machinists v. Gonzales,
356 U. S. 617,
356 U. S. 621,
similarly characterizing
Russell; see also the dissenting
opinion in
Gonzales, especially at
356 U. S.
624-626. [
Footnote
2/4]
Page 359 U. S. 253
The Court's opinion in this case cuts deeply into the ability of
States to furnish an effective remedy under their own laws for the
redress of past nonviolent tortious conduct which is not federally
protected, but which may be deemed to be, or is, federally
prohibited. Henceforth, the States must withhold access to their
courts until the National Labor Relations Board has determined that
such unprotected conduct is not an unfair labor practice, a course
which, because of unavoidable Board delays, may render state
redress ineffective. And in instances in which the Board declines
to exercise its jurisdiction, the States are entirely deprived of
power to afford any relief. Moreover, since the reparation powers
of the Board, as we observed in
Russell, are narrowly
circumscribed, those injured by nonviolent conduct will often go
remediless even when the Board does accept jurisdiction.
I am, further, at loss to understand, and can find no basis on
principle or in past decisions for, the Court's intimation that the
States may even be powerless to act when the underlying activities
are clearly "neither protected nor prohibited" by the federal Act.
Surely that suggestion is foreclosed by
Automobile Workers v.
Wisconsin Board,supra, [
Footnote
2/5] as well as by the approach taken to federal preemption in
such cases as
Allen-Bradley Local v. Wisconsin Employment
Relations Board, supra; Bethelehem Steel Co. v. New York
Board, 330 U. S. 767,
330 U. S. 773,
and
Algoma Plywood Co. v. Wisconsin Board, 336 U.
S. 301, not to mention
Laburnum and
Russell and the primary jurisdiction
Page 359 U. S. 254
doctrine itself. [
Footnote 2/6]
Should what the Court now intimates ever come to pass, then indeed
state power to redress wrongful acts in the labor field will be
reduced to the vanishing point.
In determining preemption in any given labor case, I would
adhere to the
Laburnum and
Russell distinction
between damages and injunctions and to the principle that state
power is not precluded where the challenged conduct is neither
protected nor prohibited under the federal Act. Solely because it
is fairly debatable whether the conduct here involved is federally
protected, I concur in the result of today's decision.
[
Footnote 2/1]
Youngdahl v. Rainfair, 355 U.
S. 131;
Automobile Workers v. Wisconsin Board,
351 U. S. 266.
[
Footnote 2/2]
See Allen-Bradley Local, v. Wisconsin Board,
315 U. S. 740;
cases cited at
359
U.S. 236fn2/1|>Note 1,
supra.
[
Footnote 2/3]
See text at pp.
359 U. S.
253-254,
infra.
[
Footnote 2/4]
The same view is taken of
Laburnum and
Russell
in the
amici briefs filed in the present case by the
Government and the American Federation of Labor and Congress of
Industrial Organizations, the latter stating that "[w]e hope to
argue in an appropriate case that the
Russell decision
should be overruled."
[
Footnote 2/5]
The Court may be correct in stating that
"the approach taken in that case, in which the Court undertook
for itself to determine the status of the disputed activity, has
not been followed in later decisions, and is no longer of general
application."
That, however, has nothing to do with the vitality of the
holding that there is no preemption when the conduct charged is in
fact neither protected nor prohibited. To the contrary, that
holding has remained fully intact, and, as already noted, underlay
the decisions in
Laburnum and
Russell.
[
Footnote 2/6]
If the "neither protected nor prohibited" category were one of
preemption, there would be no point in referring any injunction
case initially to the Board, since the preemption issue would be
plain however the challenged activities might be classified
federally. The same is true of damage cases under the Court's
premise of conflict. State power would thus be confined to
activities which were violent or of merely peripheral federal
concern,
see International Ass'n of Machinists v.
Gonzales, 356 U. S. 617.