In these cases, the constitutionality of labor legislation of the State of Wisconsin known as the Public Utility Anti-Strike Law,
Petitioners in No. 329 are the union and its officers who represent the employees of the Milwaukee Electric Railway and Transport Company of Milwaukee, Wisconsin, for collective-bargaining purposes.
The injunctions were issued in each case upon the complaint of the Wisconsin Employment Relations Board, charged by statute with the enforcement of the Public Utility Anti-Strike Law. That act vests in the state
In upholding the constitutionality of the Public Utility Anti-Strike Act, the Wisconsin Supreme Court stressed the importance of utility service to the public welfare and the plenary power which a state is accustomed to exercise over such enterprises. Petitioners' claim that the Wisconsin law conflicts with federal legislation enacted under the Commerce Clause of the Constitution (Art. I, § 8) was overruled, as were petitioners' contentions that the Wisconsin Act violates the Due Process Clause of the Fourteenth Amendment and the Thirteenth Amendment. Respondents controvert each of these contentions and, apart form the question of res judicata discussed in No. 302, decided this day, post, p. 411, raise no other grounds in support of the judgments below. We deal only with
First. We have recently examined the extent to which Congress has regulated peaceful strikes for higher wages in industries affecting commerce. Automobile Workers v. O'Brien, 339 U.S. 454 (1950). We noted that Congress, in § 7 of the National Labor Relations Act of 1935,
Third. As we have noted, in 1947 Congress enacted special procedures to deal with strikes which might create national emergencies.
Like the majority strike-vote provision considered in O'Brien, a proposal that the right to strike be denied, together with the substitution of compulsory arbitration in cases of "public emergencies," local or national, was before Congress in 1947.
The utility companies, the State of Wisconsin and other states as amici stress the importance of gas and transit service to the local community and urge that predominantly local problems are best left to local governmental authority for solution. On the other hand, petitioners and the National Labor Relations Board, as amicus, argue that prohibition of strikes with reliance upon compulsory arbitration for ultimate solution of labor disputes destroys the free collective bargaining declared by Congress to be the bulwark of the national labor policy. This, it is said, leads to more labor unrest and disruption of service than is now experienced under a system of free collective bargaining accompanied by the right to strike. The very nature of the debatable policy questions raised by these contentions convinces us that they cannot properly be resolved by the Court. In our view, these questions are for legislative determination and have been resolved by Congress adversely to respondents.
When it amended the Federal Act in 1947, Congress was not only cognizant of the policy questions that have been argued before us in these cases, but it was also well aware of the problems in balancing state-federal relationships which its 1935 legislation had raised. 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.
Fifth. It would be sufficient to state that the Wisconsin Act, in forbidding peaceful strikes for higher wages in industries covered by the Federal Act, has forbidden the exercise of rights protected by § 7 of the Federal Act. In addition, it is not difficult to visualize situations in which application of the Wisconsin Act would work at cross-purposes with other policies of the National Act. But we content ourselves with citation of examples of direct conflict found in the records before us. In the case of the transit workers, the union agreed to continue collective bargaining after the strike became imminent, whereas the company insisted upon invocation of the compulsory arbitration features of the Wisconsin Act. That act requires that collective bargaining continue until an "impasse" is reached, Wis. Stat., 1949, § 111.52, whereas the Federal
The National Labor Relations Act of 1935 and the Labor Management Relations Act of 1947, passed by Congress pursuant to its powers under the Commerce Clause, are the supreme law of the land under Art. VI of the Constitution. Having found that the Wisconsin Public Utility Anti-Strike Law conflicts with that federal legislation, the judgments enforcing the Wisconsin Act cannot stand.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON and MR. JUSTICE MINTON join, dissenting.
Wisconsin has provided that labor disputes in public utilities shall be resolved by conciliation or compulsory arbitration if:
(1) after exerting "every reasonable effort to settle labor disputes" by collective bargaining, the parties have reached a "state of impasse and stalemate," and
A claim of conflict between State and federal labor legislation presents a familiar problem. On eight occasions this Court has considered whether the Taft-Hartley Act, or its predecessor, the Wagner Act, 49 Stat. 449, so collided with State law as to displace it. We have sustained State laws which dealt with mass picketing and intermittent work stoppages. Allen-Bradley Local v. Wisconsin Board, 315 U.S. 740; International Union, United Automobile Workers v. Wisconsin Board, 336 U.S. 245. We have also upheld a State law which required a two-thirds vote for a maintenance-of-membership clause in collective agreements. Algoma Plywood Co. v. Wisconsin Board, 336 U.S. 301.
On the other hand, we have found in five cases that the State law could not consistently stand with the federal law. In Hill v. Florida, 325 U.S. 538, the State was found to have interfered with the freedom in selecting bargaining agents as guaranteed by the federal act. In Bethlehem Steel Co. v. New York Board, 330 U.S. 767, the State recognized a foremen's union contrary to established policy of the National Board. In La Crosse Telephone Corp. v. Wisconsin Board, supra, a conflict was found in the bargaining units determined under the State and federal acts. In Plankinton Packing Co. v. Wisconsin Board, 338 U.S. 953, a State superimposed upon federal outlawry of conduct as an "unfair labor practice" its own finding of unfairness. In International Union of United Automobile Workers v. O'Brien, 339 U.S. 454, a State act covering all industry permitted strikes at a different time than the federal act and required, unlike federal law, a majority authorization for any strike. Also, these provisions were applied to only that portion of a bargaining unit, already determined under the federal act, located within the State of Michigan.
At the outset it should be noted that the Taft-Hartley Act does not, in specific terms, deal with the problem of local strikes in public utilities even though such strikes, as a matter of constitutional law, may be brought under federal control. Congress considered and rejected special provision for settling public-utility disputes under federal law. See statement of Senator Taft, 93 Cong. Rec. 3835. So far as the statute and its legislative history indicate, however, Congress decided no more than that it did not wish to subject local utilities to the control of the Federal Government. Due regard for basic elements in our federal system makes it appropriate that Congress be explicit if it desires to remove from the orbit of State regulation
The real issue before the Court is whether the Wisconsin legislation so conflicts with the specific terms or the policy fairly attributable to the provisions of the federal statute that the two cannot stand together. We are first met with the provisions of the Taft-Hartley Act concerning the "right" to strike. Section 7 provides: "Employees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, . . . ." Section 13 provides: "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right." The word "right" is "one of the most deceptive of pitfalls." Mr. Justice Holmes, in American Bank & Trust Co. v. Federal Bank, 256 U.S. 350, 358. We have several times rejected an invitation to decide cases upon the basis of an absolute right to strike. In International Union, United Automobile Workers v. Wisconsin Board, supra, we found there was no "right" to strike in violation of a State law construed to prohibit intermittent work stoppages. In Southern Steamship Co. v. Labor Board, 316 U.S. 31, we found there was no "right" to strike in violation of a federal mutiny statute. In two other cases we held that employees who strike in violation of a collective agreement or engage in "sit-down" strikes are not protected under the federal statute. Labor Board v. Sands Mfg. Co., 306 U.S. 332; Labor Board v. Fansteel Corp., 306 U.S. 240. May the "right" to strike be also limited by an otherwise valid State statute aimed at preventing a breakdown of public-utility service?
"Public utility employer" is defined in the Wisconsin Act to mean an employer "engaged in the business of
An attempt by a State to impose upon industry as a whole a drastic limitation upon the right to strike would conflict with the federal law. Compare United Automobile Workers v. O'Brien, supra. And even as to emergency disputes—those involving the obvious public services —it may be urged that the prospect of settlement by arbitration may tend to make one or both parties reluctant to reach an agreement by bargaining. See Kennedy, The Handling of Emergency Disputes, Proceedings of Second Annual Meeting of Industrial Relations Research Assn. 14, 21-22 (1949).
But the principle of hands-off collective bargaining is no more absolute than the right to strike. The "national emergency" provisions in the Taft-Hartley Act are an affirmative indication that the force of collective bargaining
Title II would be available for settlement of the disputes involved in the cases before us only if they were a part of a nation-wide utility dispute creating a national emergency.
Only one other of the petitioners' arguments raises a substantial question of conflict.
Whether the State chose wisely in adopting arbitration rather than taking no measure or taking a more forceful measure to protect the public interest is not for us to decide. Seizure or martial law or other affirmative action by the State might be just as deleterious to collective bargaining as enforced arbitration, apart form raising other contentious issues. If there is legislative choice it is not for us to demand that what is chosen should commend itself to our private notions of wise policy. As to strikes creating a nation-wide emergency, the provisions of the Taft-Hartley Act indicate that the principle of collective bargaining may to some extent be subordinated to the interest of the public. I find no indication in the statute that the States are not equally free to protect the public interest in State emergencies.
The claim that the Wisconsin statute violates the Due Process Clause of the Fourteenth Amendment was for me definitively answered thirty years ago by Mr. Justice Brandeis:
"Nothing in this subchapter shall be construed to require any individual employe to render labor or service without his consent, or to make illegal the quitting of his labor or service or the withdrawal from his place of employment unless done in concert or agreement with others. No court shall have power to issue any process to compel an individual employe to render labor or service or to remain at his place of employment without his consent. It is the intent of this subchapter only to forbid employes of a public utility employer to engage in a strike or to engage in a work slowdown or stoppage in concert, and to forbid a public utility employer to lock out his employes, where such acts would cause an interruption of essential service."
We have before us, then, a statute aimed only at "concerted" activities of public utility employees.
In the "Declaration of Policy" of the Labor Management Relations Act of 1947, Congress stated:
"It is the purpose and policy of this Act, in order to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce . . . ." 29 U. S. C. (Supp. III) § 141 (b).
The "Findings and Policies" of the National Labor Relations Act provides, inter alia:
"It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." 49 Stat. 449, 29 U. S. C. (Supp. III) § 151.
The question of the applicability of the federal labor laws to local utilities is rarely litigated today. The Milwaukee Gas Light Company, employer in No. 438, conceded before the N. L. R. B. that it is engaged in commerce within the meaning of the Federal Act. 50 N. L. R. B. 809, 810 (1943).
In 1947, it was proposed that the coverage of the Federal Act be limited so as to exclude utilities and other enterprises whose productive effort did not extend across state lines. H. R. 1095, 80th Cong., 1st Sess., § 2 (b). Congress did not adopt any such limitation on the application of the National Labor Relations Act, but, instead, amended that Act with full appreciation of the extent of its coverage. See H. R. Rep. No. 245, 80th Cong., 1st Sess. 40, 44 (1947); S. Rep. No. 105, 80th Cong., 1st Sess. 26 (1947); H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 60 (1947).
In a recent statement of policy, the N. L. R. B. declared that, in view of the "important impact on commerce," jurisdiction will be exercised in "all cases" involving the type of public utilities before us in these cases. Local Transit Lines, 91 N. L. R. B. 623, 26 LRR Man. 1547 (1950).
The House version of the Labor Management Relations Act of 1947, H. R. 3020, 80th Cong., 1st Sess., contained a broader provision calling for a temporary prohibition on strikes whenever interstate commerce in an essential public service was threatened, during which time an advisory settlement board would recommend specific terms for settlement. A similar plan was proposed on a temporary basis in H. R. 2861, 80th Cong., 1st Sess., and approved by H. R. Rep. No. 235, 80th Cong., 1st Sess. (1947). This plan was rejected in favor of the Senate version which permitted a temporary injunction against strikes only when the "national health or safety" was imperiled and then only while a board of inquiry sifted the facts without making recommendations. H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 63-64 (1947).
See also the other proposals before the same Session of Congress to deny the right to strike in specified instances. H. R. 90 and H. R. 1095, both of the 80th Cong., 1st Sess.
"Basically, I believe that the committee feels, almost unanimously, that the solution of our labor problems must rest on a free economy and on free collective bargaining. The bill is certainly based upon that proposition. That means that we recognize freedom to strike when the question involved is the improvement of wages, hours, and working conditions, when a contract has expired and neither side is bound by a contract. We recognize that right in spite of the inconvenience, and in some cases perhaps danger, to the people of the United States which may result from the exercise of such right. In the long run, I do not believe that that right will be abused. In the past few disputes finally reached the point where there was a direct threat to and defiance of the rights of the people of the United States.
"We have considered the question whether the right to strike can be modified. I think it can be modified in cases which do not involve the basic question of wages, prices, and working conditions. But if we impose compulsory arbitration, or if we give the Government power to fix wages at which men must work for another year or for two years to come, I do not see how in the end we can escape a collective economy. If we give the Government power to fix wages, I do not see how we can take from the Government the power to fix prices; and if the Government fixes wages and prices, we soon reach the point where all industry is under Government control, and finally there is a complete socialization of our economy.
"I feel very strongly that so far as possible we should avoid any system which attempts to give to the Government this power finally to fix the wages of any man. Can we do so constitutionally? Can we say to all the people of the United States, `You must work at wages fixed by the Government'? I think it is a long step from freedom and a long step from a free economy to give the Government such a right.
"It is suggested that we might do so in the case of public utilities; and I suppose the argument is stronger there, because we fix the rates of public utilities, and we might, I suppose, fix the wages of public-utility workers. Yet we have hesitated to embark even on that course, because if we once begin a process of the Government fixing wages, it must end in more and more wage fixing and finally Government price fixing. It may be a popular thing to do. Today people seem to think that all that it is necessary to do is to forbid strikes, fix wages, and compel men to continue working, without consideration of the human and constitutional problems involved in that process.
"If we begin with public utilities, it will be said that coal and steel are just as important as public utilities. I do not know where we could draw the line. So far as the bill is concerned, we have proceeded on the theory that there is a right to strike and that labor peace must be based on free collective bargaining. We have done nothing to outlaw strikes for basic wages, hours, and working conditions after proper opportunity for mediation.
"We did not feel that we should put into the law, as a part of the collective-bargaining machinery, an ultimate resort to compulsory arbitration, or to seizure, or to any other action. We feel that it would interfere with the whole process of collective bargaining. If such a remedy is available as a routine remedy, there will always be pressure to resort to it by whichever party thinks it will receive better treatment through such a process than it would receive in collective bargaining, and it will back out of collective bargaining. It will not make a bona-fide attempt to settle if it thinks it will receive a better deal under the final arbitration which may be provided."
See also S. Rep. No. 105, 80th Cong., 1st Sess. 13-14, 28 (1947).
"It is hereby declared to be the public policy of this state that it is necessary and essential in the public interest to facilitate the prompt, peaceful and just settlement of labor disputes between public utility employers and their employes which cause or threaten to cause an interruption in the supply of an essential public utility service to the citizens of this state and to that end to encourage the making and maintaining of agreements concerning wages, hours and other conditions of employment through collective bargaining between public utility employers and their employes, and to provide settlement procedures for labor disputes between public utility employers and their employes in cases where the collective bargaining process has reached an impasse and stalemate and as a result thereof the parties are unable to effect such settlement and which labor disputes, if not settled, are likely to cause interruption of the supply of an essential public utility service. The interruption of public utility service results in damage and injury to the public wholly apart from the effect upon the parties immediately concerned and creates an emergency justifying action which adequately protects the general welfare."
"Public utility employer" is defined as any employer "engaged in the business of furnishing water, light, heat, gas, electric power, public passenger transportation or communication . . . ." § 111.51.
Section 111.52 imposes a duty on employers and employees to bargain collectively. If collective bargaining fails, the statute provides for a conciliation procedure. § 111.54. If the conciliator is unable to effect a settlement within 15 days, the dispute is submitted to arbitration. § 111.55. Existing wages, hours, and conditions of employment are to be maintained during conciliation and arbitration. § 111.56.
Standards for the arbitrator are set forth in the statute, § 111.57, and he is forbidden to make an award which "would infringe upon the right of the employer to manage his business" or "would interfere with the internal affairs of the union." § 111.58. The arbitrator's award becomes binding on the parties "together with such agreements as the parties may themselves have reached." § 111.59. It may be changed by "mutual consent or agreement of the parties," § 111.59, and is subject to judicial review. § 111.60.
The statute makes it unlawful for any group of public-utility employees "acting in concert" to call a strike or go out on strike or cause a work stoppage or slowdown which would cause an interruption of an essential service. The statute also makes it unlawful for a public utility employer to lock out his employees if such action would cause an interruption of essential service. § 111.62. Such unlawful action on the part of either employer or employees may be enjoined in an action instituted by the State Board. § 111.63. Section 111.64 makes clear that only a concerted refusal to work is made unlawful, and provides that no court shall issue process "to compel an individual employe to render labor or service or to remain at his place of employment without his consent."
There might of course be a conflict if the Wisconsin Act were held applicable by her courts to a threatened strike which was only a part of a nation-wide utility dispute to which the provisions of Title II had been applied. But our task is to decide the case before us and not to conjure up difficulties that may never arise. See Allen-Bradley Local v. Wisconsin Board, 315 U.S. 740, 746.
The Wisconsin statute is not in conflict with the provisions of Title II of the Taft-Hartley Act creating a mediation and conciliation service. The federal act takes account of state mediation facilities, and the federal officials are directed "to avoid attempting to mediate disputes which would have only a minor effect on interstate commerce if state or other conciliation services are available to the parties." § 203 (b).
Two additional arguments are based upon hypothetical conflicts not raised by the present cases. Section 111.52 of the Wisconsin Act requires that the parties "exert every reasonable effort" in order to settle the labor dispute. It is claimed that this language may be construed to require the parties to make concessions during the bargaining process—something which § 8 (d) of the Taft-Hartley Act says they do not have to do. The second argument is that, from § 111.57 of the Wisconsin Act, it appears that arbitration might be required where negotiations were underway to amend an existing contract. Under § 8 (d) of the Taft-Hartley Act, there is no duty to bargain concerning amendment of a contract still in effect. It is a sufficient answer to these contentions to note the broad separability provision in § 111.65 of the Wisconsin Act, and repeat what we said in Allen-Bradley Local v. Wisconsin Board, 315 U.S. 740, 746: "We deal . . . not with the theoretical disputes but with concrete and specific issues raised by actual cases. . . . Nor will we assume in advance that a State will so construe its law as to bring it into conflict with the federal Constitution or an act of Congress."