CRS Annotated Constitution
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Federal Versus State Labor Laws.—One group of cases, which has caused the Court much difficulty over the years, concerns the effect of federal labor laws on state power to govern labor–management relations. Although the Court some time ago reached a settled rule, changes in membership on the Court re–opened the issue and modified the rules.
With the enactment of the National Labor Relations Act and subsequent amendments, Congress declared a national policy in labor– management relations and established the NLRB to carry out that policy.1063 It became the Supreme Court’s responsibility to determine what role state law on labor–management relations was to play. At first, the Court applied a test of determination whether the state regulation was in direct conflict with the national regulatory scheme. Thus, in one early case, the Court held that an order by a state board which commanded a union to desist from mass picketing of a factory and from assorted personal threats was not in conflict with the national law that had not been invoked and[p.255]that did not touch on some of the union conduct in question.1064 A “cease and desist” order of a state board implementing a state provision making it an unfair labor practice for employees to conduct a slowdown or to otherwise interfere with production while on the job was found not to conflict with federal law,1065 while another order of the board was also sustained in its prohibition of the discharge of an employee under a maintenance–of–membership clause inserted in a contract under pressure from the War Labor Board and which violated state law.1066
On the other hand, a state statute requiring business agents of unions operating in the State to file annual reports and to pay an annual fee of one dollar was voided as in conflict with federal law.1067 And state statutes providing for mediation and outlawing public utility strikes were similarly voided as being in specific conflict with federal law.1068 A somewhat different approach was noted in several cases in which the Court held that the federal act had so occupied the field in certain areas as to preclude state regulation.1069 The latter approach was predominant through the 1950s as the Court voided state court action in enjoining1070 or awarding[p.256]damages1071 for peaceful picketing, in awarding of relief by damages or otherwise for conduct which constituted an unfair labor practice under federal law,1072 or in enforcing state antitrust laws so as to affect collective bargaining agreements1073 or to bar a strike as a restraint of trade,1074 even with regard to disputes over which the NLRB declined to assert jurisdiction because of the degree of effect on interstate commerce.1075
In San Diego Building Trades Council v. Garmon,1076 the Court enunciated the rule, based on its previous decade of adjudication. “When an activity is arguably subject to Sec. 7 or Sec. 8 of the Act, the States . . . 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.”1077
For much of the period since Garmon, the dispute in the Court concerned the scope of the few exceptions permitted in the Garmon principle. First, when picketing is not wholly peaceful but is attended by intimidation, violence, and obstruction of the roads affording access to the struck establishment, state police powers have been held not disabled to deal with the conduct and narrowly–drawn injunctions directed against violence and mass picketing have been permitted1078 as well as damages to compensate for harm growing out of such activities.1079
A 1958 case permitted a successful state court suit for reinstatement and damages for lost pay because of a wrongful expulsion, leading to discharge from employment, based on a theory that the union constitution and by–laws constitute a contract between the union and the members the terms of which can be enforced by state courts without the danger of a conflict between state and fed[p.257]eral law.1080 The Court subsequently narrowed the interpretation of this ruling by holding in two cases that members who alleged union interference with their existing or prospective employment relations could not sue for damages but must file unfair labor practice charges with the NLRB.1081 Gonzales was said to be limited to “purely internal union matters.”1082 Finally, Gonzales, was abandoned in a five–to–four decision in which the Court held that a person who alleged that his union had misinterpreted its constitution and its collective bargaining agreement with the individual’s employer in expelling him from the union and causing him to be discharged from his employment because he was late paying his dues, had to pursue his federal remedies.1083 While it was not likely that in Gonzales, a state court resolution of the scope of duty owed the member by the union would implicate principles of federal law, Justice Harlan wrote for the Court, state court resolution in this case involved an interpretation of the contract’s union security clause, a matter on which federal regulation is extensive.1084
One other exception has been based, like the violence cases, on the assumption that it concerns areas traditionally left to local law into which Congress would not want to intrude. In Linn v. Plant Guard Workers,1085 the Court permitted a state court adjudication of a defamation action arising out of a labor dispute. And in Letter Carriers v. Austin,1086 the Court held that federal law preempts state defamation laws in the context of labor disputes to the extent that the State seeks to make actionable defamatory statements in labor disputes published without knowledge of their falsity or in reckless disregard of truth or falsity.
However, a state tort action for the intentional infliction of emotional distress occasioned through an alleged campaign of personal abuse and harassment of a member of the union by the union and its officials was held not preempted by federal labor law. Federal law was not directed to the “outrageous conduct” alleged, and NLRB resolution of the dispute would neither touch upon the claim of emotional distress and physical injury nor award the plaintiff[p.258]any compensation. But state court jurisdiction, in order that there not be interference with the federal scheme, must be premised on tortious conduct either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself.1087
A significant retrenchment of Garmon occurred in Sears, Roebuck & Co. v. Carpenters,1088 in the context of state court assertion of jurisdiction over trespassory picketing. Objecting to the company’s use of nonunion work in one of its departments, the union picketed the store, using the company’s property, the lot area surrounding the store, instead of the public sidewalks, to walk on. After the union refused to move its pickets to the sidewalk, the company sought and obtained a state court order enjoining the picketing on company property. Depending upon the union motivation for the picketing, it was either arguably prohibited or arguably protected by federal law, the trespassory nature of the picketing being one factor the NLRB would have looked to in determining at least the protected nature of the conduct. The Court held, however, that under the circumstances, neither the arguably prohibited nor the arguably protected rationale of Garmon was sufficient to deprive the state court of jurisdiction.
First, as to conduct arguably prohibited by NLRA, the Court seemingly expanded the Garmon exception recognizing state court jurisdiction for conduct that touches interests “deeply rooted in local feeling”1089 in holding that where there exists “a significant state interest in protecting the citizens from the challenged conduct” and there exists “little risk of interference with the regulatory jurisdiction” of the NLRB, state law is not preempted. Here, there was obviously a significant state interest in protecting the company from trespass; the second, “critical inquiry” was whether the controversy presented to the state court was identical to or different from that which could have been presented to the Board. The Court concluded that the controversy was different. The Board would have been presented with determining the motivation of the picketing and the location of the picketing would have been irrele[p.259]vant; the motivation was irrelevant to the state court and the situs of the picketing was the sole inquiry. Thus, there was deemed to be no realistic risk of state interference with Board jurisdiction.1090
Second, in determining whether the picketing was protected, the Board would have been concerned with the situs of the picketing, since under federal labor laws the employer has no absolute right to prohibit union activity on his property. Preemption of state court jurisdiction was denied, nonetheless, in this case on two joined bases. One, preemption is not required in those cases in which the party who 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. In this case, the union could have filed with the Board when the company demanded removal of the pickets, but did not, and the company could not file with the Board at all. Two, even if the matter is not presented to the Board, preemption is called for if there is a risk of erroneous state court adjudication of the protection issue that is unacceptable, so that one must look to the strength of the argument that the activity is protected. While the state court had to make an initial determination that the trespass was not protected under federal law, the same determination the Board would have made, in the instance of trespassory conduct, the risk of erroneous determination is small, because experience shows that a trespass is far more likely to be unprotected than protected.1091
Introduction of these two balancing tests into the Garmon rationale substantially complicates determining when state courts do not have jurisdiction and will no doubt occasion much more litigation in state courts than has previously existed.
Another series of cases involves not a Court–created exception to the Garmon rule but the applicability and interpretation of Sec. 301 of the Taft–Hartley Act,1092 which authorizes suits in federal, and state,1093 courts to enforce collective bargaining agreements. The Court has held that in enacting Sec. 301, Congress authorized actions based on conduct arguably subject to the NLRA, so that the Garmon preemption doctrine does not preclude judicial enforcement of duties and obligations which would otherwise be within the exclusive jurisdiction of the NLRB so long as those duties and obli[p.260]gations are embodied in a collective–bargaining agreement, perhaps as interpreted in an arbitration proceeding.1094
Here, too, the permissible role of state tort actions has been in great dispute. Generally, a state tort action as an alternative to a Sec. 301 arbitration or enforcement action is preempted if it is substantially dependent upon analysis of the terms of a collective– bargaining agreement.1095 Thus, a state damage action for the bad– faith handling of an insurance claim under a disability plan that was part of a collective–bargaining agreement was preempted because it involved interpretation of that agreement and because state enforcement would frustrate the policies of Sec. 301 favoring uniform federal–law interpretation of collective–bargaining agreements and favoring arbitration as a predicate to adjudication.1096
Finally, the Court has indicated that with regard to some situations, Congress has intended to leave the parties to a labor dispute free to engage in “self–help,” so that conduct not subject to federal law is nonetheless withdrawn from state control.1097 However, the NLRA is concerned primarily “with establishing an equitable process for determining terms and conditions of employment, and not with particular substantive terms of the bargain that is struck when the parties are negotiating from relatively equal positions,” so States are free to impose minimum labor standards.1098
Supplement: [P. 255, add to n.1069, immediately following Bethlehem Steel:]
See also Livadas v. Bradshaw, 512 U.S. 107 (1994) (finding preempted because it stood as an obstacle to the achievement of the purposes of NLRA a practice of a state labor commissioner).
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