Logan, Charles P., Jr.

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Maryland Law ReviewVolume 18 | Issue 1 Article 7Pre-emption and Non-regulation - the No Man'sLand of Labor Relations - Guss v. Utah LaborRelations BoardCharles P. Logan Jr.Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Labor and Employment Law CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationCharles P. Logan Jr., Pre-emption and Non-regulation - the No Man's Land of Labor Relations - Guss v. Utah Labor Relations Board, 18 Md.L. Rev. 50 (1958)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol18/iss1/7MARYLAND LAW REVIEW [VOL. XVIIIPre-Emption And Non-Regulation - The No Man'sLand Of Labor RelationsGuss v. Utah Labor Relations Board'Since the enactment of the National Labor RelationsAct2 the field of labor-management relations has been domi-nated by Federal policy, the exclusiveness of which hasbeen made clear in Garner v. Teamsters Union' and Weberv. Anheuser-Busch, Inc.4 The States were left, for practicaland historical reasons, with power over breaches of thepeace, mass picketing,6 threats of violence 7 and violentpicketing amounting to torts under state law where noadequate Federal remedy existed.8However, the question had arisen under the Act whethera State could act in a labor dispute where the N.L.R.B. didnot choose to act. In Bethlehem Co. v. State Board9 theSupreme Court refused its blessing to the New York LaborBoard's certification of a foremen's union as a bargainingagent where the national board's policy was not to grantcertification to such unions. It was held that the FederalAct occupied the field, leaving no power to the State in amatter covered by that Act and implied a lack of authorityin the national board to confer jurisdiction upon the State.The Court expressly refused to pass on the question ofState action in cases where the N.L.R.B. declined to exer-cise jurisdiction for budgetary or other reasons.This decision led to the inclusion of a proviso to Section10(a) in the Taft-Hartley amendments to the NationalLabor Relations Act,10 which section expressly authorized1353 U. S. 1 (1957).249 Stat. 449, as amended 61 Stat. 136, 29 U. S. C. A. §151 et &eq. (1956).8346 U. S. 485 (1953).'348 U. S. 468 (1955).aAuto Workers v. Wisconsin Board, 351 U. S. 266 (1956).0Allen-Bradley Local v. Board, 315 U. S. 740 (1942) ; Drivers Union v.Meadowmoor Co., 312 U. S. 287 (1941).1 Youngdahl v. Rainfair, Inc ... U. S ... , 78 S. Ct. 206 (1957). In AutoWorkers v. Wisconsin Board, supra, n. 4, 272, the Court remarked:"No one suggests that violence is beyond State criminal power ...The State interest in law and order precludes such interpretation...Nor should the fact that a union commits a federal unfair labor practicewhile engaging in violent conduct prevent States from taking stepsto stop the violence."8 United Workers v. Laburnum Corp., 347 U. S. 656 (1954).9 330 U. S. 767 (1947).10Labor Management Relations Act, 61 Stat. 146, §10(a), 29 U. S. C. A.§160(a) (1956) :"... The Board is empowered by agreement with any agency of anyState or Territory to cede to such agency jurisdiction over any casesin any industry . . . even though such cases may involve labor disputesGUSS v. UTAH LABOR REL. BD.cession of jurisdiction by the N.L.R.B. in certain cases,under severely restrictive conditions.The Board, while having full jurisdiction over the labor-management relations which are the subject of the nationalAct,11 has refused to exercise its power in many cases forpolicy or budgetary reasons - usually where the impacton interstate commerce was slight. These classes of caseshave since 1950 been governed by an N.L.R.B.-determinedset of jurisdictional standards based on annual dollaramounts of interstate transactions made by the companyinvolved in the dispute. The standards were raised in 1954,increasing the area of commerce wherein the Board wouldrefuse its services. 2 The question of what power, if any, adeclination of jurisdiction gave to the States was againcarefully avoided in Building Trades Council v. KinardConstruction Co.'3In a series of decisions handed down on March 25, 1957,Section 10 (a) was held by the Supreme Court to be declara-tive of Congressional intent to retain for itself the regula-tion of labor relations affecting commerce, in spite of theadministrative incompleteness of this regulation. The factsituations in these cases are roughly similar and are iden-tical in the essential point discussed in this note.In Guss v. Utah Labor Board,'4 unfair labor practiceswere charged against the employer by the N.L.R.B. certifiedbargaining agent. Between the certification and the filingof the charge the N.L.R.B. raised its yardsticks so as toexclude the employer's business from N.L.R.B. jurisdiction.The complaint was refused by the N.L.R.B. since the opera-tions involved were predominantly local in character andit would not effectuate the policies of the Act to exercisejurisdiction. The unfair labor practices charged wereclearly within the provisions of the national Act. The unionthen filed the same charges under the State Act with theState Labor Board which found in the complainant's favor.The State Board's remedial order was upheld by theSupreme Court of Utah from which the appeal was taken.affecting commerce, unless the provision of the State or Territorialstatute... is Inconsistent with the corresponding provision of this Actor has received a construction Inconsistent therewith."See Labor Board v. Falnblatt, 306 U. S. 601 (1939), wherein the Actwas held to reach to the full extent of the Commerce clause.12 Set forth in Breeding Transfer Company, 110 NLRB 493, 505 (1954)(Case No. 14-RC-2512).'346 U. S. 933 (1954). It was not shown that the respondent applied tothe National Board, or that it would be futile to do so.14353 U. S. 1 (1957).1958]MARYLAND LAW REVIEW [VOL. XVIIIIn Meat Cutters v. Fairlawn Meats,15 the N.L.R.B.'s aidwas not invoked but the employer's (complainant's) directinterstate imports were but one-tenth of the Board's cur-rent minimum standard and presumably the N.L.R.B.would have refused to take jurisdiction. The employerobtained a State Court injunction against the union's peace-ful recognition picketing and the secondary pressuresexerted by the union. The injunction was upheld by theSupreme Court of Ohio and the union took an appeal to theSupreme Court of the United States.The third case, San Diego Unions v. Garmon,16 involvedpeaceful picketing by an uncertified union to compel theemployer to grant a union shop contract. The N.L.R.B.,under its monetary yardsticks, dismissed the employer'spetition for determination of the picketing union's right torecognition as the employee's bargaining agent. The em-ployer sued in a State court to enjoin the picketing on theground that he was being coerced into an 8 (a) (3)17 viola-tion and in addition, sought damages resulting from thepicketing. Relief was granted on both counts and theSupreme Court of California affirmed, holding that an un-fair labor practice as defined by the national Act had noprivilege from State law in the absence of Federal exer-cise of its jurisdiction.The reasoning of the Supreme Court in the Guss case,and followed in the others cited, was briefly that 10(a) ofthe national Act prescribed the exclusive means whereby aState could be permitted to take jurisdiction of cases fallingwithin the substantive jurisdiction of the N.L.R.B., wherethe latter for budgetary or policy reasons, refused to exer-cise that jurisdiction. Section 10(a) required not only anexpress cession of jurisdiction but also that the industryinvolved be local in character, and, that the State law towhich the N.L.R.B. yields be consistent with Federal law,either by express provision or by judicial interpretation. 8Congress had shown its intention to require uniformity inlabor policy, even at the expense of leaving certain classesof industry free of all regulation. The Court said:1353 U. S. 20 (1957).'353 U. S. 26 (1957).11L. M. R. A., supra, n. 9, 18(a)(3), 29 U. S. (. A. §158(a) (3) (1956):"It shall be an unfair labor practice for an employer - by discrimina-tion in regard to hire or tenure of employment or any term or conditionof employment to encourage or discourage membership in any labororganization ... "10 Supra, n. 10. In its brief as amlous ourfae in these cases, the N. L. R. B.stated that it had not been able to make any cession agreements under theproviso to 10(a) since no State statute met these conditions.GUSS v. UTAH LABOR REL. BD."And here we find not only a general intent to pre-empt the field but also the proviso to §10(a), with itsinescapable implication of exclusiveness."We are told by appellee that to deny the Statejurisdiction here will create a vast no-man's-land, sub-ject to regulation by no agency or court. We are toldby appellant that to grant jurisdiction would produceconfusion and conflicts with federal policy. Unfortu-nately, both may be right. We believe, however, thatCongress has expressed its judgment in favor of uni-formity. Since Congress' power in the area of com-merce among the States is plenary, its judgment mustbe respected whatever policy objections there may beto creation of a no-man's land."19The question left open in the Kinard" decision was thusclearly and decisively answered. The Court suggested thatCongress may at any time relax its cession restrictions orthat the Board may reassert its full jurisdiction over labordisputes affecting interstate commerce.21The dissenting opinion of Justices Burton and Clarkpointed out that traditionally the States retained power toact where Federal power lay dormant. Section 10(a) wasintended to provide for those situations where the nationalBoard for policy reasons determined that the State shouldact in a particular case or class of cases. 22 However, merefailure of the Board to act when it is forced to limit itsactivities for budgetary reasons is not "cession" and Sec-tion 10 (a) has no application. In the Bethlehem2 decision,it was noted, the Court expressly refrained from decidingthe latter question.24The scope of these decisions is apparent. The States areexcluded for all practical purposes, by this view of Section10(a), from acting upon unfair labor practices in the "NoMan's Land", whether the action arises in a State court orbefore a State labor board, and whether State or Federallaw is applied, eliminating as a result both judicial andadministrative power in the States except as to certaintypes of tortious or criminal activities.2"1 Supra, n. 14, 10-11.10 Supra, n. 13.Supra, n. 14, 11.Ibid, dis. op. 12.Bethlehem Co. v. State Board, 330 U. S. 767 (1947).Ibid, 776.See cases, 8upra, ns. 5, 6, 7 and 8. The case, Laburnum, supra, n. 8,involved a tort under State law.19581MARYLAND LAW REVIEW [VOL. XVIIIThe doctrine of pre-emption which was of such greatassistance in the expansion of Federal policy throughoutthe area of labor relations (as well as in other areas) hashere resulted in the exclusion of Federal or any other laborlaw or policy with regard to cases lying outside the adminis-trative capabilities of the N.L.R.B. Amendment of the Taft-Hartley Act is exceedingly difficult as a political reality,since bills intended to amend the Act in one respect arouseproposals from other sources to make more sweepingchanges.Legislative proposals by Senators Ives26 and Watkins 2Tinvolve an express reversal of the doctrine of the Guss 2sand its companion cases by authorizing the N.L.R.B. todecline jurisdiction and expressly denying legislative intentto exclude State power over these areas. The Smith bill,2"which arose out of another application of the preemptiondoctrine, destroys implied preemption itself by limiting theexclusionary effect of Federal acts to those cases where thestatute expressly so states.The Ives bill 30 has the additional feature of repealing therestrictive conditions of 10(a). Since no State statuteshave yet met, nor are likely to meet, these conditions, itwould seem that elimination of the proviso to 10(a) isessential to effective use of cession agreements.The defect of these proposals is that they do not meetthe problem of uniformity in the regulation of labor rela-tions in the field of interstate commerce.Probably the solution lies in the reassertion by theN.L.R.B. of its delegated jurisdiction over the entire fieldof commerce.81 This would, of course, entail greater ex-pense to the Federal government in the form of largerN.L.R.B. budgets, as well as some reorganization of theBoard. Perhaps something similar to the Supreme Courts'restriction of certiorari might evolve, thus making theregional board's ruling administratively final, unless con-flicts need resolution by the National Board.CHARLES P. LOGAN, JR.S. 1772, 85th Cong., 1st Session (1957).IS. 1723, 85th Cong., 1st Session (1957).353 U. S. 1 (1957).2 H. R. 3, 85th Cong., 1st Session (1957).0 Supra, n. 26.U See Office Employees v. Labor Board, 353 U. S. 313 (1957), where theCourt reversed a refusal of the N.L.R.B. to exercise jurisdiction on policygrounds. It might be significant to note that in the Guss case the Courtwas careful to state that it had not passed and was not passing on thevalidity of any particular set of jurisdictional standards nor upon anyparticular declination of jurisdiction by the N.L.R.B.

Pre-emption and Non-regulation - the No Man\u27s Land of Labor Relations - Guss v. Utah Labor Relations Board

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