United Automobile, Aircraft & Agricultural Implement Workers of America v. Wisconsin Employment Relations Board

PETITIONER:United Automobile, Aircraft & Agricultural Implement Workers of America
RESPONDENT:Wisconsin Employment Relations Board
LOCATION:

DOCKET NO.: 530
DECIDED BY: Warren Court (1955-1956)
LOWER COURT:

ARGUED: Apr 24, 1956 / Apr 25, 1956
DECIDED: Jun 04, 1956

Facts of the case

Question

  • Oral Argument – April 25, 1956
  • Audio Transcription for Oral Argument – April 25, 1956 in United Automobile, Aircraft & Agricultural Implement Workers of America v. Wisconsin Employment Relations Board

    Audio Transcription for Oral Argument – April 24, 1956 in United Automobile, Aircraft & Agricultural Implement Workers of America v. Wisconsin Employment Relations Board

    Earl Warren:

    Number 530, United Automobile, Aircraft and Agricultural Implement Workers of America versus Wisconsin Employment Relations Board and Kohler Company.

    Mr. Hanslowe.

    Kurt L. Hanslowe:

    Yes, Your Honor.

    If the Court please.

    This case is here on appeal from the Supreme Court of Wisconsin.

    This Court, noting probable jurisdiction on January 30th of this year.

    The issue in the case is the jurisdiction of the Wisconsin Employment Relations Board to investigate and enjoin in a state unfair labor practice proceeding the kind of conduct which the National Labor Relations Board is empowered to investigate and to prohibit.

    The Wisconsin tribunals upheld the state jurisdiction throughout when the appellant here has attacked such jurisdiction.

    In addition, the States of Texas, Utah and Georgia had filed briefs amicus urging this Court to affirm the decision below.

    The appellant is a labor organization certified by the National Labor Relations Board to represent the employees of the appellee, Kohler Company, for purposes of collective bargaining.

    The certification followed a regular federal statutory representation proceeding and the certification issued on June 19th of 1952.

    On April 5, 1954, a strike commenced the — at the Kohler Company following unsuccessful negotiations for a new collective bargaining agreement.

    The employees of the Kohler Company picket at the premises.

    On April 15, 1954, some 10 days after the commencement of the strike, the Kohler Company filed a complaint with the Wisconsin Employment Relations Board charging the appellant and others with unfair labor practices within the meaning of the Wisconsin Employment Peace Act which is the Wisconsin labor statute.

    The gist of Kohler’s complaint was that the appellant and others had engaged in mass picketing in the obstruction of egress and ingress in the picketing of employees’ homes and threats of violence and violence and in the obstruction of traffic.

    It was alleged by the Kohler Company that by so doing, the employees of the Kohler Company have been coerced, employees who did not want to work, but who — who did not want to strike but wanted to work and that other people, in addition, were prevented from having access to the premises of the Kohler Company.

    On May 21st, 1954, the Wisconsin Board entered an order finding the appellant and others to have committed these unfair labor practices and directing them to cease and desist from committing them in the future.

    This order of the Wisconsin Board was enforced by the Circuit Court for Sheboygan County, Wisconsin on August 13, 1954, and by the Supreme Court of Wisconsin on May 3, 1955.

    The Supreme Court of Wisconsin in its decision took cognizance of the fact that the business of the Kohler Company affected commerce within the meaning of the National Labor Relations Act.

    The Supreme Court of Wisconsin also took cognizance of past and pending assertion of jurisdiction by the National Labor Relations Board over the labor relations of the Kohler Company, both in representation and in unfair labor practice proceedings.

    The holding of the Wisconsin Court was that although the Taft-Hartley Act regulated a union unfair labor practices, nevertheless, the action of the Wisconsin Labor Board constituted a valid exercise of the State’s police power.

    I should like, if I may, to — to well briefly on the N.L.R.B.proceedings of which the Wisconsin Court took cognizance.

    There were two representation proceedings, one of which I’ve already mentioned that resulted in the certification of the appellant.

    In addition to that, there was an unfair labor practice case decided by the Labor Board on April 12, 1954, and enforced by the Court of Appeals for the Seventh Circuit, the decision being reported at 220 F.2d, page 3.

    In addition, the National Labor Relations Board issued a complaint on October 26, 1954, that is to say, some six months after the commencement of the strike, this case is N.L.R.B.Case 13-CA-1780.

    Now, it’s indicated that N.L.R.B.proceeding resulted out of the same strike which precipitated the State Board proceeding here involved.

    Hugo L. Black:

    Is that proceeding against the union or the company?

    Kurt L. Hanslowe:

    That, Your Honor, is a proceeding against the company on charges filed by the union.

    The charges are refusal to bargain, discrimination, and other forms of interference and coercion of the employees of the Kohler Company.We have added, if the Court please, to our record as Appendix C excerpts from the pleadings of that case, and we are asking the case to take judicial notice of those pleadings, they — that those pleadings are not in the record necessarily because the state proceeding preceeded the federal proceeding.

    We do not believe it is inappropriate for us to ask the Court to take notice of this pending proceeding.

    Kurt L. Hanslowe:

    The significant thing, we believe, about this still continuing federal board proceeding is that the Kohler Company, in that case has pleaded the same conduct of the appellant in defense of the federal unfair labor practice charges which conduct formed the basis of the State Board proceeding.

    We have reproduced, as I said, those pleadings in the appendix, and on page 17 (c) of our brief, there is a — the relevant excerpt then our brief is the green document.

    The Kohler Company alleged in that case, that is the federal case, that the union was not bargaining in good faith in that beginning April 5 and continuing to date and engaged in supported, urged, and fostered, coerced of an illegal conduct including interfering by force, threats, intimidation and mass pickets with persons desiring to pursue lawful work and employment for the respondent.

    Attempting by such means to prevent lawful work, I shall not continue reading.

    I shall simply say that the conduct there pleaded is precisely the same conduct with which we were charged in the state proceeding.

    Now, the first thing which becomes apparent from the state of affairs —

    Your appendix before the Board, is that it?

    Kurt L. Hanslowe:

    Yes, Your Honor.

    The — the first thing that becomes apparent from this state of affairs is that the situation is one quite obviously right with conflict.

    It is entirely conceivable that the testimony on these issues was — will not be the same before the two agencies.

    If it’s entirely conceivable that even if the testimony were the same, the two agencies will not place the same interpretation upon it.

    As a matter of fact, in the proceeding, it’s going on now, there are indications that the testimony on these issues is not the same.

    Felix Frankfurter:

    The remedy you (Inaudible)

    Kurt L. Hanslowe:

    The remedy in the true proceeding is not the same since the federal proceeding —

    Felix Frankfurter:

    Do they have anything in common?

    Kurt L. Hanslowe:

    Sir?

    Felix Frankfurter:

    That the remedy that was sought in the polices proceedings have anything in common?

    Kurt L. Hanslowe:

    Well, the remedies are the same in the sense that they are both unfair labor practice remedies.

    Felix Frankfurter:

    (Inaudible)

    Kurt L. Hanslowe:

    Yes, but in the state proceeding, of course, the remedy wasn’t directed against the union whereas in the federal proceeding, it will be directed against the employer, but they are indeed the same remedy.

    Felix Frankfurter:

    It’s completed as to both, that’s all they have in common.

    Kurt L. Hanslowe:

    Under labor practice proceedings, the same — while the relief is, of course, not the same since it would be directed against the two parties.

    Now —

    Felix Frankfurter:

    Where is the judgment?

    What is the judgment of the Wisconsin court (Inaudible)

    Kurt L. Hanslowe:

    The judgment of the Wisconsin Supreme Court is on page 31 of the record, Your Honor.

    Felix Frankfurter:

    31?

    Kurt L. Hanslowe:

    Yes.

    The record is the brown book.

    Beatrice Lampert:

    17, 18 and 19.

    Felix Frankfurter:

    All right.

    Page 18, 19 and 20.

    Kurt L. Hanslowe:

    I’m sorry.

    It is pages 17 — well, that Your Honor is the — that is the judgment of the Circuit Court.

    The judgment of the Supreme Court is on page 31 of the record.

    Felix Frankfurter:

    That judgment is under review so that it was affirmed by the Court of the State of Wisconsin.

    Kurt L. Hanslowe:

    Yes, Your Honor.

    That judgment —

    Felix Frankfurter:

    And these terms follow injunctions of this cease-and-desist order.

    Kurt L. Hanslowe:

    It is a cease-and-desist order.

    Affirming any effect of cease-and-desist order entered by Wisconsin Board.

    Felix Frankfurter:

    How could any — but the judgment — the judgment of any cease-and-desist order of the Board being conflict with this.

    Kurt L. Hanslowe:

    Of the federal board?

    Felix Frankfurter:

    Yes.

    Kurt L. Hanslowe:

    Well it could be in conflict in this —

    Felix Frankfurter:

    In this — could it issue any cease-and-desist order which was in conflict with this?

    Kurt L. Hanslowe:

    It could be in conflict if the — if Your Honor please, in the sense that the same fact situation which form the basis of this judgment might be viewed by the federal board in a different light.

    The federal board might, in effect, take the same fact situation, find that the alleged course of conduct and the part of the appellant was not indeed unlawful and the —

    Felix Frankfurter:

    But I know, could they say that you can throw a possession — do they allow them to reverse and intimidate, to threat and throughout (Inaudible) is an old fashioned way to consider (Inaudible) that the National Labor Relations Board affirmatively prevents the employer from not allowing it to do these things.

    Kurt L. Hanslowe:

    In the now pending federal board proceeding, Your Honor, no order could be entered directly conflicting with the order here in review, but it is our belief that the actual fact of conflict is, if course, not necessary to justify a holding to the effect that the State Board was without jurisdiction because it — because it is the potential of conflict which is present in this case, which requires that holding.

    Felix Frankfurter:

    To what extent would that not be true in the cases which we have decided rather than they reach the case, larger state to enjoin by government to burden Allen-Bradley.

    I know there’s an occasion to facts but so far as — so far as the vagueness of those decisions made for the (Inaudible) measure by the state they serve.

    Kurt L. Hanslowe:

    May I point —

    Felix Frankfurter:

    The potential — they are not that potential (Inaudible)

    Kurt L. Hanslowe:

    May I point out, Your Honor, that the Laburnum case, which is the most recent of the cases involving violence, was not an injunction case.

    The Laburnum case was a case involving damages.

    Felix Frankfurter:

    Well, do you think that the cases under the injunction a matter for the (Inaudible) the state power should be.

    Kurt L. Hanslowe:

    I think that the inference is quite strong from the Laburnum case, both from the majority holding and from the dissenting opinion that a state labor board, at least, could not enjoin the conduct involved in that case.

    Felix Frankfurter:

    Why don’t you go down to have the much potential to make — to make the union pay rather than prohibit it from duty?

    Kurt L. Hanslowe:

    Well, as I understand, the holding in the Laburnum case, it was that because the remedy applied by the State was one that could not possibly conflict with the federal remedy.

    Kurt L. Hanslowe:

    It could stand.

    Felix Frankfurter:

    It couldn’t hear what you’ve just said and what I take from the record because the state — the federal court couldn’t pass on it if the relief that it has from here or given a relief that is it has opposed doing that.

    Kurt L. Hanslowe:

    I respectfully beg to differ, Your Honor.

    The federal board —

    Felix Frankfurter:

    Does not — it might not find the facts that — I’m saying that — that it cannot make a difference, it seems to me, in both the union on this claim that it had permitted violence and that to enjoin as he — on the claim he is permitted by — I do not understand how large the potential interference (Inaudible)

    Kurt L. Hanslowe:

    Well You Honor, may I suggest that in the — let me –may I suggest in the Laburnum case, the two remedies were not the same and therefore although it maybe an interference with the union, it would not be — it wasn’t the action in — above the State in the Laburnum case was not an interference with the federal board’s jurisdiction.

    Felix Frankfurter:

    But isn’t the central — the central underlying brief of those cases in which state power was allowed to invade that there is less than area of police to the State, isn’t that an essential fact?

    Kurt L. Hanslowe:

    It is my understanding of these decisions that there is an area of police power in the States, but this does not mean that the States can exercise that police power in any way they see fit.

    And we believe that the decisions of this Court mean that the States may not exercise that police power in a manner that conflicts with a federal regulatory statute.

    And, may I finish —

    Felix Frankfurter:

    (Inaudible)

    Kurt L. Hanslowe:

    Well —

    Felix Frankfurter:

    Isn’t it actually that there is a — individual police power in which it’s so local in it’s incident and if in fact overriding concern, I’m not saying that it has in this case, that’s a suggestion to those (Inaudible) there is left a certain area of — what I call police for.

    Would you think — suppose it didn’t go before your State Board, because it’s stated in that injunction, would that be all right?

    Kurt L. Hanslowe:

    Oh, that is a very difficult question.

    Felix Frankfurter:

    Why is it very difficult?

    Please tell me that.

    Kurt L. Hanslowe:

    Because in — because in a court of equity, the judge would be applying general principles applicable to all situations alike, labor, relation situations, any other violence or threat of violence situation.

    Indeed, it is very likely in this case, if — if the Kohler Company had sought an — a general equity injunction that they would not have gotten it because the Circuit Judge on reviewing the State Board’s order said that he regret it that the state labor statute made his powers in a situation of this kind so narrow.

    He said that he would much rather be sitting in — as a court of general equity jurisdiction applying general principles of equity weighing the respective merits of the parties’ positions judging whether or not the company came into Court with clean hands.

    Felix Frankfurter:

    Do you think if the State — it doesn’t — giving a judge with equity judge the power in the first instance, it all was present and should be referred to the master, would that make any difference?

    Do you think it would make a difference if the State uses — the State Board takes, the board is (Inaudible)

    That’s what this amounts to, doesn’t it?

    Kurt L. Hanslowe:

    Well, I — it is — as I indicated very difficult to answer in — in blank of the questions concerning what might happen, the fact is that in this case, we do not have a master, we do not have a chancellor sitting in equity.

    Felix Frankfurter:

    Do you have a court decree based on the finding about it at — they could do that?

    Kurt L. Hanslowe:

    You have, Your Honor, a court decree based on findings made by a specialized labor board —

    Felix Frankfurter:

    That’s what a special way, that’s for the discretion of the State, the power to point — to determine the facts.

    Kurt L. Hanslowe:

    Well, I cannot —

    Felix Frankfurter:

    Whether it’s — whether it’s presented to a master, astounding master, a special master, whatever he called himself.

    Kurt L. Hanslowe:

    I find this difficult to reconcile with this Court’s decisions in Garner and Anheuser-Busch.

    Kurt L. Hanslowe:

    And incidentally, Your Honor —

    Felix Frankfurter:

    (Voice Overlap)

    on the basis of why do I call a police?

    Kurt L. Hanslowe:

    With reference to the Allen-Bradley case and the UAW, AFL case and the so-called Briggs and Stratton case, I believe, those are the police cases to which Your Honor had reference.

    It may be that the Court in those cases was holding that the States police power was involved, but I do not read those cases as holding that that police power could be exercised in any way the States saw fit.

    Because in those cases, the Court said very expressly that we are upholding the action of the State here because it is not regulated by the federal Act either by prohibition or by protection.

    Felix Frankfurter:

    Of course, this isn’t the only (Inaudible) on the ground that it does in conviction the federal department if it does in Wisconsin as seen.

    Kurt L. Hanslowe:

    Well, Your Honor, may I point out that since the Taft-Hartley amendments, the National Labor Relations Board have the Kohler Company seen fit to take its case before them and file federal unfair labor practice charges, the N.L.R.B.could have entered almost precisely the same kind of order that the Wisconsin Board did here.

    Felix Frankfurter:

    But the whole question is, at least to my mind is whether when you have this type of a situation, that isn’t the enforcement, perhaps, the State move in strictly by one of the police authority, I’m not talking about police force.

    Now, where does the police authority deal with this narrow aspect of important impunity within the State itself.

    Kurt L. Hanslowe:

    Your Honor, I suggest that —

    Felix Frankfurter:

    Isn’t that (Inaudible) — isn’t that this case?

    Kurt L. Hanslowe:

    Your — I — I —

    Felix Frankfurter:

    Isn’t that the translated provision.

    Kurt L. Hanslowe:

    I would think that that is one of the issues involved in the case, yes.

    But may I point out that the State of Wisconsin has ample police power under its statutes and codes of general applicability to regulate violence, threats to the breach of the peace and the like.

    The Wisconsin has an ample criminal code that prohibits crimes against the person, against property that prohibits riot as assemblies.

    It has an ample traffic code that allows it to regulate traffic and keep the streets clear, irrespective of whether these interferences occur in a labor relations context or elsewhere.

    Felix Frankfurter:

    That is a great — that is a great difficulty because that’s the judgment that on these facts which compromises these people to jail for violation its criminal code although the National Labor Relations Board may find the fact otherwise but you can’t proceed in this one.

    Is that all that gives you difficulty that a State has power to call out permission presenting to the jail (Inaudible) civil rights.

    Kurt L. Hanslowe:

    Well, I would suggest, Your Honor, that, in fact, Wisconsin was not here proceeding under a police major as I understand the term.

    Wisconsin was proceeding under what is called the Employment Peace Act.

    It was proceeding — which is found in turn in a chapter of the Wisconsin statutes entitled Employment Relations.

    The — the declaration of policy that precedes this statute says that the — that the public policy of the State is declared here as to employment relations and collective bargaining.

    Felix Frankfurter:

    It was dealing with presence of violence in this domain instead of leaving it to the general police peace legislation.

    And the State certainly has discretion to deal with abuses and (Inaudible) ordered in specialized situations not having to (Inaudible) to catch all (Voice Overlap) statute.

    Kurt L. Hanslowe:

    I suggest to Your Honor that the State of Wisconsin here was dealing primarily with the regulation of labor relations.

    It was primarily setting up the rules of the game in a labor dispute.

    It was not in — It was incidentally, Your Honor, regulating the traffic.

    It was incidentally, Your Honor, protecting the peace.

    Kurt L. Hanslowe:

    It was not primarily — It was primarily protecting statutory rights of employees under a labor statute very similar to the statutory rights of employees in the federal labor statutes.

    Felix Frankfurter:

    We do not have the statute as such before.

    We have a particular, specific provision applying to a specific set of service.

    Kurt L. Hanslowe:

    And I suggest that the thrust of the order of Wisconsin Board applying this statute is primarily one directed towards the regulation of employment relations, not directed towards the protection of the peace.

    Stanley Reed:

    How, Mr. Hanslowe, how do we see what is before the Board at the present time and are you referring to a proceeding that’s been brought before the Board?

    Kurt L. Hanslowe:

    This is appended to our Appendix C, Your Honor.

    Stanley Reed:

    And what is that proceeding?

    Kurt L. Hanslowe:

    Those are excerpts from pleadings.

    Stanley Reed:

    That — that’s a complaint?

    Kurt L. Hanslowe:

    It is the complaint of the federal board and an answer in the number of amended answers to the complaint filed by the Kohler Company.

    Stanley Reed:

    Well, did you — did you filed something to the federal court as I have said?

    Kurt L. Hanslowe:

    We filed initially a so-called unfair labor practice charge on the base of —

    Stanley Reed:

    You filed a charge based in a complaint.

    Hugo L. Black:

    That’s right.

    Stanley Reed:

    And these were those in the entire proceeding that they didn’t file (Inaudible)

    Hugo L. Black:

    We have not — the pleadings and the — the record in that N.L.R.B.case are extremely voluminous.

    A vast number of pleadings and amendments have been filed in the federal case.

    We have only added excerpts of those pleadings.

    Stanley Reed:

    And it’s certain as it’s been pleaded the — they have the — they have not been printed.

    Hugo L. Black:

    There is a —

    Stanley Reed:

    The Board.

    Hugo L. Black:

    No.

    There’s no order of the Board printed, of course, because no order of the Board has issue with this.

    Stanley Reed:

    Eventually, the Board have to answer (Inaudible)

    Hugo L. Black:

    No intermediate report of the trial examiner has been issued, Your Honor.

    Now, I would like to make one additional observation to what we deem to be the essential unfairness of having this — these issues tried simultaneously in effect before two federal boards.

    We sought to defend in the state proceeding on the basis of certain course of conduct of the Kohler Company.

    And indeed, from the comment of the Circuit Judge that he would much rather be sitting in equity, it appears that — that there was some merit to our claim, but the Supreme Court of Wisconsin told us that this conduct of the Kohler Company could not be considered unless we have filed our own unfair labor practice charge against the Kohler Company before the Wisconsin Board.

    In other words, it seems to be the position of the State of Wisconsin that not two simultaneous unfair labor practices, but three and perhaps even more are inappropriate way of handling this kind of a case.

    Now, one additional comment ought to be made and that is that the appellees in this case are claiming that this is the only kind of unfair labor practice which is also regulated by the federal Act which the State Board is free to deal with in a state unfair labor practice proceeding.

    Hugo L. Black:

    And because it is perfectly plain from the decisions of this Court that any other unfair labor practice subject to federal regulation is subject to the exclusive jurisdiction of the federal board.

    And there can, I respectfully suggest, be no doubt that the kind of conduct involved in this case is subject to federal regulation.

    It is to be perfectly plain that Section 8 (b) (1) (a) of the federal statute which added unfair labor practices was intended to bring the kind of conduct here involved subject to the investigative and regulatory powers of the federal board.

    In other words, if this conduct have been proven before the federal board, the federal board could have entered virtually the same kind of order that the State Board did.

    And may I suggest that the federal remedy is not at all cumbersome and slow and ineffective, because the federal statute contains a provision authorizing the general counsel of the federal board to secure temporary restraining orders prior to final adjudication where he sees fit.

    So that insofar as dealing with this kind of situation in an unfair labor practice proceeding is concerned, the federal proceeding is speedy and expeditious too.

    How was the time in a row between the initiation of the state proceedings and the initiation of the federal proceedings?

    Hugo L. Black:

    The state proceedings were initiated on April 15.

    The federal proceeding was initiated some six months later because that was our charge against the company.

    The company has chosen to proceed in this — before the State Board rather than before the federal board.

    I am correct that the federal complaint issued some six months afterwards.

    The — our charge was filed against the Kohler Company some three months after the state proceeding.

    Now, we are not, as I have already indicated, questioning in this case the power of the State to regulate or punish violence, threats of breaches to the peace and the like by police measures generally applicable to all situations.

    It is —

    Stanley Reed:

    Or — or to issue injunctions?

    Kurt L. Hanslowe:

    We are not questioning certainly a general equity injunction based on general principles of equity directed, let us say, to the protection of property.

    For example, pickets through bricks at a —

    Stanley Reed:

    (Inaudible)

    Kurt L. Hanslowe:

    At a — Briggs through — through Briggs had a plan why certainly that could be enjoined.

    Stanley Reed:

    You don’t — you don’t question so far it’s violence of any a kind, I take it.

    Kurt L. Hanslowe:

    That is right.

    Stanley Reed:

    Even though it’s a (Inaudible)

    Kurt L. Hanslowe:

    That’s right.

    But we think that the State should apply its police measures to labor disputes as they do to any other situation.

    And if, on the other hand, our conduct is to be judged in a labor relations context why then it has to be judged before the central federally designated tribunal of the National Labor Relations Board.

    Supposing this Wisconsin statute here would capture the general welfare statute instead of the Labor Relations Peace statute or whatever it’s called, do you have any quarrel in that?

    Kurt L. Hanslowe:

    Well I would think one would still have to look to the character of the statute and if one did that, one would find that the statute contains a provision — a provision for example setting up employee rights to engage in concerted activities or to refrain from doing so.

    Their — their injunction didn’t do that.

    Kurt L. Hanslowe:

    Yes it did, Your Honor.

    I suggest it is our position that the thrust of the injunction in this case is directed towards the protection of employee rights in the exercise of the statutory rights under a — under the state labor statute.

    Kurt L. Hanslowe:

    The — among the conclusions of law of the Wisconsin Board is a — is a conclusion that the appellant had violated a section of the Wisconsin statute which prohibit — which makes — makes it an unfair labor practice to coerce employees in the exercise of their rights established in Section 111.04.

    If one goes to Section 111.04, one finds that that section is almost a verbatim duplication of Section 7 of the National Labor Relations Act which establishes certain employee rights.

    And I believe that the entire order of the Wisconsin Board is directed towards the protection of employees in the exercise of their statutory rights exactly as the federal board would enter such an order under like circumstances.

    And that insofar as the Wisconsin Board — Wisconsin Board might regulate traffic why this I suggest is in — an incident to the protection of employee rights and the same incident would flow from a federal board order because the federal board, under Section 8 (b) (1) (A) of the statute, has held all of the conduct which the Wisconsin Board found to have taken place here to be a federal unfair labor practice.

    There is — there is no conduct here which the federal board has not, in one case or another, regulated as a union unfair labor practice.

    That being so, we believe we are entitled to have that conduct judged by the federal board to see whether in fact it took place.

    Now, this overlap is admitted, at least, by the Kohler Company in their brief, although, they do suggest that the Wisconsin Board could or did do some things that the federal board could not have done.

    But we believe that — at the point where there is this impingement upon the federal board’s jurisdiction why the state action cannot be upheld.

    For example, Wisconsin points out in its brief that unlike the federal statute, the state statute proscribes unfair labor practices by any person.

    The federal statute proscribes unfair labor practices by employers, labor unions and their agents.

    Well the fact of the matter is that that particular section of the Wisconsin statute was not invoked here.

    Again, Wisconsin claims that the Wisconsin statute prohibits individuals and members of the union as well as labor unions and their agents.

    The fact of the matter is that the Wisconsin Board is — Board’s order is directed towards two labor unions, one of whom is the appellant here, the other one being one of its local unions and to the agents of labor unions.

    I suggest that the Wisconsin had wanted to avoid conflict with the — the federal board, they might have limited their regulation to that of individuals who were not agents of a labor organization, because that, the federal board couldn’t regulate.

    Now, with respect to the continued validity of state labor laws and the continued jurisdiction of state labor boards, we think that the Congress in the federal labor statute has spoken.

    The Congress, we believe, has told us in Section 10 (a) and in Section 14 (b) of the federal Act where and under what circumstances state labor boards were to have jurisdiction.

    Section 10 (a) is the so-called session proviso which authorizes the federal board to cede jurisdiction to state labor boards under certain circumstances.

    Section 14 (b) is the section of the statute which specifically saves the continued validity of state regulation of the union shop.

    We think that those two sections taken together represent the legislative judgment as to the circumstances under which the state labor boards were to have jurisdiction.

    Felix Frankfurter:

    And that wouldn’t be exclusive, otherwise, it would wipe out all of the (Inaudible)

    Kurt L. Hanslowe:

    Well, Your Honor, I do suggest that it is conclusive insofar as the continued jurisdiction of state labor boards over federally regulated unfair labor practices is concerned.

    Felix Frankfurter:

    That imposes the section that clearly implies the decree that are explicitly exclusive — that otherwise, exclusively would be within the federal authority and not within this ambiguous area in which the fighting — the legal fighting as to the general rule, (Inaudible)

    Kurt L. Hanslowe:

    As I understand —

    Felix Frankfurter:

    And so for exclusive event, it wouldn’t be having to trouble with them having the various cases and finish them on this Court.

    Kurt L. Hanslowe:

    Well, Your Honor I believe that the decisions of this Court are quite clear that the —

    Felix Frankfurter:

    Well, they must be — they must be much clearer to the denial (Inaudible)

    Kurt L. Hanslowe:

    That Your Honor clarify them extremely well.

    I thought in the Anheuser-Busch case, and as I read those decisions, they do suggest that the federal board’s jurisdiction where it exist and we — it does exist here.

    It undeniably exists here.

    Where it exists, it is exclusive.

    Felix Frankfurter:

    I thought if the Anheuser-Busch (Inaudible) but the Court decided to candidly say that the hearing is not (Inaudible)

    Kurt L. Hanslowe:

    Yes, the Court indicated that there was a penumbral area.

    Felix Frankfurter:

    Yes.

    That — that’s where the area is regarding this case.

    Kurt L. Hanslowe:

    Now, I should like, if I may, to direct my attention to some decisions which the appellees have relied upon particularly in support of their position.

    The first of these is one that has already been mentioned, that is the Allen-Bradley case which is of particular significance here because it involves a substantially similar order of the Wisconsin Board and it involves the same provisions of the Wisconsin statute.

    Now, the Court has — The Court in the Allen-Bradley case said that we decided this case this way, we authorize the — we — we find the action of the State Board authorized because the conduct involved is not regulated by the Federal Labor Act either by protection or by prohibition.

    And of course, significantly, that case came up in 1942 and predated the Taft-Hartley amendments which added federal regulation of this kind of conduct to the federal labor statute.

    And the Court has, on subsequent occasions, characterized its holding in the Allen-Bradley case in the same way in the case of Hill against Florida which followed very shortly.

    The Court said in Allen-Bradley, we found the conduct to be unregulated federally and the — in Anheuser-Busch, the Court said about Allen-Bradley, the Court held that such conduct was not subject to regulation by the federal board either by prohibition or by protection.

    And the Briggs-Stratton case, the famous Quickie Strike case stands for the same proposition.

    That case followed Taft-Hartley.

    But again, the holding of the Court was, that the conduct involved in that case was not subject to federal regulation.

    And in the opinion of the Court, it is said that the federal board is without expressed power to regulate this kind of conduct.

    In this case, we say, there is such expressed power.

    We have already discussed briefly the Laburnum case as we understand that decision.

    And I — the case was characterized in Weber- Anheuser-Busch this way in Laburnum which involved 8 (b) (1) (A) of the federal statute, the same section of the federal statute here involved.

    In Laburnum, the violent conduct was reached by a remedy having no parallel in and not in conflict with any remedy afforded by the federal Act.

    And as I read the case, there seem to be substantial agreement between the majority and the dissent of Mr. Justice Douglas.

    That while the state remedy was being upheld because it did not duplicate or conflict with the federal remedy, if that the contrary had been the case, a different result would have obtained.

    The — the Court said in the Laburnum case to the extent that Congress prescribed preventive procedure against unfair labor practices.

    The Garner case recognized that the Act excluded conflicting state procedure to the same end.

    And I repeat again, Laburnum did involve violent conduct.

    And Mr. Justice Douglas, in his dissent said, on the facts found by the state court, the labor organized and the union have committed an unfair labor practice under 8 (b) (1) (A) by using threats and to force of the picket line to make employees join the union contrary to their desires.

    A state court or a state labor board could not enjoin that conduct as Garner against Teamsters Teachers.

    Now, Mr. Justice Douglas differed it from the conclusion of the majority that the State could superimpose an additional different remedy, but there seem to be substantial agreement that there could be — that there could be no duplication of the federal remedy.

    One more case I should like to refer to, it’s the Algoma Plywood case which is repeatedly cited by appellees.

    That case involved — in — in that case, the Court upheld application by the State of Wisconsin of its regulation of the union shop.

    And we believe the Court did so for a very good and plain reason, namely, that Congress in Section 14 (b) of the statute has said that the States may do so.

    In — the Court in that case said Section 10 (a) of the federal Act which is the section that empowers that federal board to regulate unfair labor practices, Section 10 (a) of the federal Act was designed to preclude conflict in the administration of remedies for the practices prescribed by Section 8.

    Kurt L. Hanslowe:

    And in this case, we do have Section 8 practices.

    Thus, we believe that the instant case involves an area which is subject both to substantive and to procedural regulation under the Federal Labor Act by the Federal Labor Board.

    For that reason, we do not believe that the States may regulate the same conduct in substantially the same manner.

    And I believe that I might appropriately close by referring to the language of Mr. Justice Frankfurter yesterday in the Mine Workers case when he said that withdrawal of state power has been found to exist where state law makes inroads on the primary jurisdiction which Congress has — with which Congress has invested the National Labor Relations Board.

    We believe that the Wisconsin Board thus make such inroads here.

    Indeed, we believe that the Wisconsin Board’s order substantially duplicates the kind of order which the Federal Board might have entered.

    And in consequence, we do not believe that the States’ action can stand.

    Earl Warren:

    We’ll adjourn now.