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
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 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 pre-empted 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 28. However, since it was not clear whether the
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, §§ 1677, 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
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
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.
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.
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
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.
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.
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
The judgment below is
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 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. 26.
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 pre-emption 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 pre-emption, 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, at page 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
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.
Until today this holding of Laburnum has been recognized by subsequent cases. See Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 477; Automobile Workers v. Russell, supra, at 640, 641, 644; International Assn. of Machinists v. Gonzales, 356 U.S. 617, 621, similarly characterizing Russell; see also the dissenting opinion in Gonzales, especially at 624-626.
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, 336 U. S., supra,
In determining pre-emption 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.
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 out 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 660-662, n. 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 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. 666. The Court also placed reliance on a quotation from International Union v. Wisconsin Board, 336 U.S. 245, 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 . . . ."
The damages awarded were extensive, consisting primarily of loss of profits caused by the disruption of respondents' 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 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, 348 U.S. 468, 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 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 646. See also 356 U. S., at 642; and 356 U. S., at 640, where the Court points out that Alabama could have enjoined the activities of the union.