Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge/Dissent White

Mr. Justice WHITE, with whom THE CHIEF JUSTICE joins, dissenting.

Like Mr. Justice DOUGLAS, I would neither overrule nor eviscerate International Assn. of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958). In light of present statutory law and congressional intention gleaned therefrom, state courts should not be foreclosed from extending relief for union deprivation of members' state law rights under the union constitution and bylaws. Even if I agreed that the doctrine of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), properly pre-empts such union member actions based on state law where the challenged conduct is arguably an unfair labor practice, I could not join the opinion of the Court since it unqualifiedly applies the same doctrine where the conduct of the union is only arguably protected under the federal law.

The Garmon doctrine, which is today reaffirmed and extended, has as its touchstone the presumed congressional goal of a uniform national labor policy; to this end, the Court has believed, the administration of that policy must insofar as is possible be in the hands of a single, centralized agency. In many ways I have no quarrel with this view. Many would agree that as a general matter some degree of uniformity is preferable to the conflicting voices of 50 States, particularly in view of the structure of industrial and commercial activities in this country. Congress determined as much when it enacted the National Labor Relations Act (NLRA).

But it is time to recognize that Congress has not federalized the entire law of labor relations, even labor-management relations, and that within the area occupied by federal law neither Congress, this Court, nor the National Labor Relations Board itself has, in the name of uniformity, insisted that the agency always be the exclusive expositor of federal policy in the first instance. To put the matter in proper perspective it will be helpful to set down some of the important contexts in which federal law is implemented by the courts or other institutions without the prior intervention of the Board, as well as those in which state rather than federal law is permitted to operate. Part I, following, undertakes this task. Against that background, Part II deals with union member actions against their union, and Part III considers the Garmon doctrine in those situations where the conduct complained of is arguably protected by federal law.

* It is well established that the Board has jurisdiction over unfair labor practices even though they might also be arguable violations of the collective-bargaining agreement and subject to arbitration under the terms of the contract. See 29 U.S.C. § 160(a); Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964); NLRB v. Strong, 393 U.S. 357, 360-361, 89 S.Ct. 541, 544-545, 21 L.Ed.2d 546 (1969); NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967). But as a policy matter the Board will not overturn arbitration awards based on behavior that is also an alleged unfair labor practice if the arbitration proceedings comply with certain procedures, among which is that the arbitrator must have given consideration to the alleged unfair labor practice. Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955); International Harvester Co., 138 N.L.R.B. 923 (1962), enforced sub nom. Ramsey v. NLRB, 327 F.2d 784 (CA7 1964). The Board has said:

'If complete effectuation of the Federal policy is to be     achieved, we firmly believe that the Board, which is entrusted with the administration of one of the many      facets of national labor policy, should give hospitable      acceptance to the arbitral process as 'part and parcel of the      collective bargaining process itself,' and voluntarily      withhold its undoubted authority to adjudicate alleged unfair      labor practice charges involving the same subject matter,      unless it clearly appears that the arbitration proceedings      were tainted by fraud, collusion, unfairness, or serious      procedural irregularities or that the award was clearly      repugnant to the purposes and policies of the Act.'      International Harvester Co., supra, at 927 (citations      omitted).

See also Carey v. Westinghouse Elec. Corp., supra, 375 U.S., at 270-272, 84 S.Ct., at 408-409; Raley's Inc., 143 N.L.R.B. 256 (1963).

Thus, not only does Board policy allow arbitrators to pass on conduct which is also an alleged unfair labor practice, but the Board will not consider an unfair labor practice charge unless the arbitrator has passed on it. And even then, the Board has made quite clear that its standard of review is far from de novo; it will let stand an arbitrator's award not 'clearly repugnant' to the Act. See, e.g., Virginia-Carolina Freight Lines, 155 N.L.R.B. 447 (1965), where the Board refused to uphold an arbitrator's award allowing discharge of an employee for 'disloyalty' where the 'disloyalty' consisted of seeking assistance from the Board. The Board's standard of review for arbitration awards seems to be even narrower than the substantial-evidence test, for the Board has not purported to overturn awards simply on the evidence before the arbitrator. The standards chosen by the Board operate entirely separately from the substantial-evidence test. See § 10(e), Administrative Procedure Act, 5 U.S.C. § 706 (1970 ed.). In fact, in International Harvester itself, the Board agreed to accept the arbitrator's award 'since it plainly appears to us that the award is not palpably wrong.' To require a wider scope of evidentiary review, said the Board, 'would mean substituting the Board's judgment for that of the arbitrator, thereby defeating the purposes of the Act and the common goal of national labor policy of encouraging the final adjustment of disputes, 'as part and parcel of the collective bargaining process." 138 N.L.R.B., at 929.

Congress, no less than the Board, has indicated its approval and endorsement of the arbitral process even though this may result in controversies being adjudicated by forums other than the Board. Section 203(d) of the Labor Management Relations Act (LMRA), 1947, 61 Stat. 154, 29 U.S.C. § 173(d), declares:

'Final adjustment by a method agreed upon by the parties is     declared to be the desirable method for settlement of      grievance disputes arising over the application or      interpretation of an existing collective-bargaining      agreement.'

See United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 566-568, 80 S.Ct. 1343, 1345-1347, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). See also § 10(k) of NLRA, 29 U.S.C. § 160(k). Indeed, § 301(a) of the LMRA, 29 U.S.C. § 185(a), may be considered the birthplace of much of modern arbitration law. As the Court said in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957): '(Section 301) expresses a federal policy that federal courts should enforce these (arbitration) agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way.' Finally, this Court itself has expressed the view, in construing federal law pursuant to § 301(a), that the policy of encouraging arbitration was sufficient to overcome considerations favoring pre-emption. In the Court's words, 'Arbitral awards construing a seniority provision * *  * or awards concerning unfair labor practices, may later end up in conflict with Board rulings. * *  * Yet, as we held in Smith v. Evening News Assn. (371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962)), the possibility of conflict is no barrier to resort to a tribunal other than the Board.' Carey v. Westinghouse Electric Corp., 375 U.S., at 272, 84 S.Ct., at 409.

The cumulative effect of all of this is that the jurisdiction of one forum-in this case, arbitration-is not displaced simply because the Board also has jurisdiction to act. The policy of pre-emption and, to some extent, of uniformity itself is subordinated to the greater policy of encouraging arbitration of grievances.

Deference to the arbitral forum is not the only instance where arguable or conceded unfair labor practices are excepted from the pre-emption doctrine. In Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), the employee brought suit under § 301(a) of the LMRA, 29 U.S.C. § 185(a), to enforce the collective-bargaining contract, alleging that the employer discriminated against certain employees because of their union affiliation. The conduct, if proved, would not only have been a violation of the contract but would concededly have been an unfair labor practice as well. The Court expressly rejected the Garmon doctrine in the context of such suits, holding that, while Board jurisdiction over unfair labor practices was not displaced when the conduct also allegedly violated the terms of the contract, neither was the jurisdiction exclusive. This result was consistent with the expressed intent of Congress that enforcement of collective-bargaining agreements be 'left to the usual processes of the law,' rather than to the Board. Charles Dowd Box Co., Inc. v. Courtney, 368 U.S. 502, 511, 82 S.Ct. 519, 524, 7 L.Ed.2d 483 (1962). See also Local 174, Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. 95, 101 n. 9, 82 S.Ct. 571, 575, 7 L.Ed.2d 593 (1962); Sovern, Section 301 and the Primary Jurisdiction of the NLRB, 76 Harv.L.Rev. 529 (1963).

These cases, like those dealing with arbitration, indicate a willingness to subordinate the Garmon doctrine when other, more pressing problems are at hand. Here, the policy to be served was that collective-bargaining agreements be enforced by the judiciary, notwithstanding concurrent Board jurisdiction to regulate that activity which was also an unfair labor practice. To be sure, the Court has required that, in the interests of uniform development of the law, state courts must apply federal law. Lucas Flour, supra, at 102-104, 82 S.Ct., at 576-577. But the Court was no less aware in Smith than it had been nine years earlier in Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776, 346 U.S. 485, 490-491, 74 S.Ct. 161, 166, 98 L.Ed. 228 (1953), that: 'A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.' The point is simply that the perceived interest in judicial adjudication of contractual disputes was more important than the interests of uniformity that would be promoted by pre-emption.

In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), this Court refused to apply the pre-emption doctrine to suits charging a breach of the union's duty of fair representation, even though the Board had held that such a breach was also an unfair labor practice. Miranda Fuel Co., 140 N.L.R.B. 181 (1962). Though one reason for this result was that the duty of unfair representation had been for the most part developed by the judiciary rather than the Board, the other reason was concern over the possibility of denying a hearing to an employee who felt his individual interests had been unfairly subordinated by the union. The Court expressed fear that, were preemption the rule, 'the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board's General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint.' 386 U.S., at 182, 87 S.Ct., at 912.

Congress has expressly given a federal cause of action for damages to parties injured by secondary union activity under § 8(b)(4), which may be enforced by suits brought in either state or federal court. 29 U.S.C. § 187(b). The union's activity giving rise to liability is of necessity an unfair labor practice, but Congress elected to have the question adjudicated in court, even though the activity might be the subject of a parallel and possibly inconsistent determination by the Board. See Local 20 Teamsters, Chauffeurs and Helpers Union v. Morton, 377 U.S. 252, 256, 84 S.Ct. 1253, 1256, 12 L.Ed.2d 280 (1964). Of course federal law governs such cases, at least where the union activity is not violent; and presumably the decisions of the NLRB on secondary activity would be consulted for guidance. But the Congress chose not to have the Board hear such suits, even though the Board is probably far more familiar than the courts with the variety of problems posed by secondary activity.

The phenomenon of the no-man's land and the conclusions that can be drawn on pre-emption are also instructive, for they cast substantial doubt not only on the intent of Congress but on the very foundations of Garmon itself. In Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957), the Court held that States were powerless to intervene in labor disputes where the NLRB possessed jurisdiction, even though the Board had refused to assert its jurisdiction because of the 'predominantly local' character of the company's operations. The Court conceded that this would likely produce 'a vast no-man's-land, subject to regulation by no agency or court,' id., at 10, 77 S.Ct., at 603, but insisted this was the intent of the Congress and that Congress could change the situation if it desired. Congress did change the situation soon thereafter, providing that the States may assert jurisdiction over any dispute where the Board declines to do so because of the insubstantial effect on interstate commerce. § 14(c) of NLRA, as amended, 73 Stat. 541, 29 U.S.C. § 164(c). The purpose of this section was to fill the chasm created by Guss. See, e.g., 105 Cong.Rec. 6430 (Sen. Goldwater). The situation was roundly condemned by legislators, who called it variously 'a no man's land, in which there are grievous wrongs and no remedy under American jurisprudence as of this time,' id., at 6413 (Sen. McClellan), and 'a stench in the nostrils of justice.' Id., at 6544 (Sen. Ervin). In short, the reaction to Guss indicates that this Court was quite wrong in determining that the no-man's land was justified in the name of congressional intent to achieve uniformity in law and administration.

Of some interest is the fact that Garmon was based upon, and expanded to a significant degree, the rationale of Guss:

'It follows (from Guss) that the failure of the Board to     define the legal significance under the Act of a particular      activity does not give the States the power to act. In the     absence of the Board's clear determination that an activity      is neither protected nor prohibited or of compelling      precedent applied to essentially undisputed facts, it is not      for this Court to decide whether such activities are subject      to state jurisdiction. The withdrawal of this narrow area     from possible state activity follows from our decisions in      Weber and Guss.' 359 U.S., at 246, 79 S.Ct., at 780. (Emphasis added.)

Yet five months after the announcement of the Garmon decision, Congress in effect overruled Guss and thus at least counseled caution in applying the Garmon rationale.

The provisions of § 14(c), however, do not allow state jurisdiction where the Board refuses to assert jurisdiction for 'policy' reasons, as where the General Counsel refuses to issue a complaint because he is not convinced of the merits of the plaintiff's cause. In such a situation, Garmon precludes state action (or action by federal courts) because the Board's action does not define the activity 'with unclouded legal significance.' 359 U.S., at 246, 79 S.Ct., at 780. In 1965, the Court eased the harsh strictures of Garmon in this area by holding that reasons articulated by the General Counsel for his refusal to issue a complaint would open the way for state action if the explanations 'squarely define the nature of the activity' sought to be subjected to Board consideration. Hanna Mining Co. v. District 2, Marine Engineers Beneficial Assn., 382 U.S. 181, 192, 86 S.Ct. 327, 333, 15 L.Ed.2d 254 (1965).

Even though federal law is pervasive in labor-management relations, state law is preserved in some respects. At first blush, it might seem that these matters present no problems of uniformity, for there is no national law being applied. But the simple fact that Congress and this Court have deferred to the States in these areas indicates a subordination of the interest in uniformity to the interests of the States. By making the matter one of state law, Congress has not only authorized multiformity on the subject, but practically guaranteed it. The results, as far as uniformity is concerned, are no different than if the States applied federal law with abandon. For example, the controversial § 14(b) of NLRA, 61 Stat. 151, 29 U.S.C. § 164(b), has authorized States to choose for themselves whether to require or permit union shops. This allows the States to regulate union or agency shop clauses, Algoma Plywood & Veneer Co., v. Wisconsin Employment Relations Board, 336 U.S. 301, 69 S.Ct. 584, 93 L.Ed. 691 (1949); Retail Clerks International Ass'n v. Schermerhorn, 373 U.S. 746, 83 S.Ct. 1461, 10 L.Ed.2d 678; 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963), so that union insistence on a security agreement as part of a collective-bargaining agreement may be prohibited in one State and protected or even encouraged in another. The policy choice made by Congress on this matter necessarily subordinated uniformity in national law to what were perceived to be overriding concerns of the States.

Other examples are familiar. In United Construction Workers, etc. v. Laburnum Construction Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954), the Court upheld a state court damage award for injuries suffered as a result of the tortious conduct of the union's agent, who threatened violence if the company's employees did not join the union. The Court assumed that the union conduct was an unfair labor practice, seeking as it did to interfere with the employee's § 7 right not to join a labor union. But it noted the inadequacy of the existing Board procedure to provide suitable remedies for those injured as a result of the conduct, and was impressed by the fact that to hold the state courts pre-empted 'will, in effect, grant petitioners immunity from liability for their tortious conduct.' The Court found 'no substantial reason for reaching such a result.' 347 U.S., at 664, 74 S.Ct. 837. Accord, International Union, United Automobile, etc., Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958); Linn v. United Plant Guard Workers, 383 U.S. 53, 61-62, 86 S.Ct. 657, 662-663, 15 L.Ed.2d 582 (1966). Again, it is entirely possible that some States will require a greater showing of violence than others before awarding damages, so that behavior that violently seeks to coerce union membership will be prohibited in one State and allowed in another. But the interest in uniformity is subordinated to the larger interests that persons injured by such violence have preserved to them whatever remedies state law may authorize.

To summarize, the 'rule' of uniformity that the Court invokes today is at best a tattered one, and at worst little more than a myth. In the name of national labor policy, parties are encouraged by the Board, by Congress, and by this Court to seek other forums if the unfair labor practice arises in an arbitrable dispute, violates the collective-bargaining agreement, or otherwise qualifies as one of the exceptions mentioned.

Until today, Int'l Assn. of Machinists v. Gonzales, supra, had been thought to stand for the proposition that Garmon did not reach cases 'when the possibility of conflict with federal policy is * *  * remote.' 356 U.S., at 621, 78 S.Ct., at 925. But with today's emasculation of Gonzales, there is probably little that remains of it. Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), was ostensibly based in part on this rationale, id., at 59-61, 86 S.Ct., at 661-662, but it was equally bottomed on Laburnum Construction and other cases upholding state power to regulate matters of 'overriding state interest' such as violence or, as in Linn, defamation. I see no reason why this exception has not, for all practical purposes, thus expired. In my view, however, and for the reasons set forth in Part II, Gonzales controls this case.

There are two broad, but overlapping, relationships among employers, labor unions, and union members. On the one hand, there is the relationship between employer and employee, generally termed labor-management relations, which involves the union at virtually every step, where the employees have chosen to be represented by one. The other relationship, union-member relations, involves the affairs between the union and the employee as union member.

In enacting the NLRA in 1935, 49 Stat. 449, Congress defined and prohibited unfair labor practices by employers. Experience under the Act showed that labor organizations were quite as capable as employers of pernicious behavior, and in 1947 Congress enacted the Labor Management Relations Act, 61 Stat. 136, which, among other things, protected employees and employers against certain unfair labor practices by labor organizations that were defined by the Act. Protection given employees, whether union members or not, was primarily job related. Although unions were forbidden to restrain or coerce employees in the exercise of their § 7 rights, Congress expressly negated any intention to 'impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership * *  * .' 29 U.S.C. § 158(b)(1). The unmistakable focus of both the NLRA and the LMRA is on labor-management relations, rather than union-member relations, as such.

During the 1950's there came to light various patterns of union abuse of power, and in the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 519. Congress acted to correct these evils by directly addressing itself to some aspects of union-member affairs. The LMRDA provides a 'bill of rights,' which gives union members the right to participate in union affairs, to speak freely, and to be protected from arbitrary discipline. It also imposes certain requirements on unions to disclose their financial affairs, regulates union elections, and safeguards labor organizations against unscrupulous agents or officers. Throughout the Act are provisions for civil or criminal enforcement of the Act in federal courts. See 73 Stat. 523, 525, 529-530, 531, 534, 536, 537, 539. But in a crucial departure from what the Court has held the legislative intention was in regulating labor-management relations, the Congress declared:

'Except as explicitly provided to the contrary nothing in     this Act shall reduce or limit the responsibilities of any      labor organization or any officer *  *  * or other      representative of a labor organization *  *  * under any other      Federal law or under the laws of any State, and, except as      explicitly provided to the contrary, nothing in this Act      shall take away any right or bar any remedy to which members      of a labor organization are entitled under such other Federal      law or law of any State.' § 603(a), 73 Stat. 540, 29 U.S.C. §     523(a) (emphasis added).

If this were not clarity enough, Congress also provided in Title I, the 'bill of rights':

'Nothing contained in this title shall limit the rights and     remedies of any member of a labor organization under any      State or Federal law or before any court or other tribunal,      or under the constitution and bylaws of any labor organization.' § 103, 73 Stat. 523,     29 U.S.C. § 413.

Beyond any doubt whatever, although Congress directly imposed some farreaching federal prohibitions on union conduct, it specifically denied any pre-emption of rights or remedies created by either state law or union constitutions and bylaws. Thus, as to union-member relations, any parallel rights created by the States, either directly or indirectly through enforcement of union constitutions or bylaws, were to stand at full strength. Congress backed up this power by requiring unions to make available to members the constitution and bylaws of the union, as well as financial information. § 201, 73 Stat. 524, 29 U.S.C. § 431.

The LMRDA was a major effort by Congress to regulate the rights and responsibilities of the union-member relationship as such, but, as shown by § 603(a), it was clearly not an attempt to make federal law the exclusive arbiter of this relationship. In Gonzales the Court noted that 'the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law * *  * .' 356 U.S., at 620, 78 S.Ct., at 925. Though in the following year the LMRDA certainly 'undertook' to protect members in important respects, it specifically disavowed any notion of pre-empting state law and thus left unimpaired the Gonzales conclusion that state law has a proper role in union-member disputes.

If, as I have attempted to show in Part I, the Board is not the sole arbiter even of federal law and if, as I have also attempted to show, there is room for the operation of state law in certain areas of even labor-management relations, then to me the conclusion is inescapable that in the area of union-member relations, which Congress has not sought to deal with comprehensively and where Congress has preserved state remedies for the very conduct prohibited by federal law, we should be very careful about assuming congressional intention to brush aside local rights and remedies. Indeed, far from pre-empting state law, one of the major thrusts of the LMRDA was to enforce state rights and remedies. At the very least, the inquiry presented by this or any other case dealing with union-member relations cannot be answered by automatic invocation of the purported rule of pre-emption in the name of uniformity.

Like many States, Idaho construes the union-member relation to be a contractual one, defined by the constitution and bylaws of the union. As such, the contracts are enforceable through the State's traditional common-law jurisdiction. Here, Lockridge was discharged for alleged nonpayment of dues in accordance with the union constitution and brought suit alleging that he had in fact not been unduly tardy and that the union's action was a breach of the contract. The face of the complaint did not implicate federal law. If the Idaho court were allowed to proceed, it would not have purported to adjudicate an unfair labor practice by reference to federal law, but, if it found the conduct unprotected by federal law, see Part III, infra, would have enforced rights and obligations created by the union constitution. The Court nevertheless holds that because the union conduct alleged in the complaint also constitutes or arguably so, an unfair labor practice, the controversy must be adjudicated by the National Labor Relations Board. I find little in the Court's opinion to convince me that Congress intended this result. With all respect, I agree with Gonzales that this result is at best 'abstractly justifiable, as a matter of wooden logic.' 356 U.S., at 619, 78 S.Ct., at 924.

Furthermore, this Court's decision in Smith v. Evening News, supra, seems contrary to the result reached today. Smith held that suits to enforce the collective-bargaining agreement could be brought in state or federal courts under § 301 notwithstanding the fact that the conduct alleged would also constitute an unfair labor practice. Thus, courts enforcing Smith-type actions are dealing in contract rights, not unfair labor practices. There seems little reason why suits for breach of the union-member contract cannot similarly be brought in state courts (or in federal courts in diversity actions), notwithstanding the alternate nature of the behavior as an unfair labor practice.

Indeed, § 301 actions are governed by federal law and even here the NLRB does not pre-empt the courts. There is even less justification for precluding actions under state law in the area of union-member relations which Congress has expressly said is not an exclusively federal domain.

I find no merit in the argument that Congress passed § 301 though recognizing that some § 301 suits would involve unfair labor practices, but, by not providing analogous federal court jurisdiction for breaches of union constitutions, manifested its expectation that breaches which also involve unfair labor practices should be a matter for Board jurisdiction. Some readily imaginable union actions prohibited by Title I of the LMRDA could be unfair labor practices as well, but by providing for federal suit to enforce the remedies, and leaving state remedies untouched, Congress certainly disavowed, as clearly as if it had said so explicitly, any notion that the Board was to pre-empt other forums in passing on statutory breaches which were also unfair labor practices. Arbitration of grievances is a similar situation, since arbitrators, rather than the Board, construe and enforce contractual rights that are breached in the commission of putative unfair labor practices. See Part I, supra.

I have attempted to show in Part II that invocation of Garmon-type preemption is inappropriate where a union member brings suit against a union for breach of the union's constitution or bylaws. Wholly apart from such considerations, however, I cannot agree with the opinion of the Court because it reaffirms the Garmon doctrine as applied to conduct arguably protected under § 7, as well as to that arguably prohibited under § 8. The essential difference, for present purposes, between activity that is arguably prohibited and that which is arguably protected is that a hearing on the latter activity is virtually impossible unless one deliberately commits an unfair labor practice. In a typical unfair practice case, by alleging conduct arguably prohibited by § 8 the charging party can at least present the General Counsel with the facts, and if the General Counsel issues a complaint, the charging party can present the Board with the facts and arguments to support the claim. But for activity that is arguably protected, there is no provision for an authoritative decision by the Board in the first instance; yet the Garmon rule blindly pre-empts other tribunals. International Longshoremen's Local 1416, AFL-CIO v. Ariadne Shipping Co., 397 U.S. 195, 201, 90 S.Ct. 872, 875, 25 L.Ed.2d 218 (1970) (White, J., concurring). The Assistant General Counsel of the NLRB has describe the situation:

'(A)pplication of the Garmon 'arguably protected' test in     this situation leaves the employer's interests in an      unsatisfactory condition. The employer cannot obtain relief     from the state court with respect to activity that may in      fact not be protected by section 7 of the Act, and the only      way that he can obtain a Board determination of that question      is by resorting to self-help measures; if he guesses wrong,      this may subject him not only to a Board remedy but also to      tort suits. That result is as undesirable as the 'no-man's     land' created by the holding in Guss *  *  * .' (Footnotes      omitted.) Come, Federal Preemption of Labor-Management      Relations: Current Problems in the Application of Garmon, 56      Va.L.Rev. 1435, 1444 (1970).

I believe that the considerations that justify exceptions to the rule of uniformity apply with greater force to § 7 situations and further, that basic concepts of fundamental fairness regardless of their effect on the model of uniformity, counsel against any rule that so inflexibly bars a hearing.

The Assistant General Counsel of the Board has stated the paradox succinctly:

'When a union engages in peaceful picketing that is not     prohibited by section 8 of the NLRA, a state court cannot      enjoin the picketing as a trespass because the activity is      'arguably protected' by section 7. But since there is no     unfair labor practice, the employer cannot bring the question      before the Board for adjudication. The only way for him to     get a Board ruling as to whether the picketing is actually      protected is to resort to 'self-help' to expel the pickets,      thereby forcing the union to file unfair labor practice      charges to which he can raise the status of the picketing as      a defense.' Come, supra, at 1437-1438.

Though the most natural arena for this conflict occurs when picketers trespass on private property, see Taggart v. Weinacker's, Inc., 397 U.S. 223, 227, 90 S.Ct. 876, 878, 25 L.Ed.2d 240 (1970) (Burger, C.J., concurring), Broomfield, Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity, 83 Harv.L.Rev. 552 (1970), other instances include 'quickie' strikes or slow-downs, see NLRB v. Holcombe, 325 F.2d 508 (CA 5 1963), or employees' inaccurate complaints to state officials about sanitary conditions in the plant, Walls Mfg. Co. v. NLRB, 116 U.S.App.D.C. 140, 321 F.2d 753 (1963), or collective activity designed to persuade the employer to hire Negroes. NLRB v. Tanner Motor Livery, Ltd., 349 F.2d 1 (CA 9 1965), or failure to participate in a union check-off. Radio Officers' Union etc. v. NLRB, 347 U.S. 17, 24-28, 39-42, 74 S.Ct. 323, 335-337, 98 L.Ed. 455 (1954).

There seems little point in a doctrine that, in the name of national policy, encourages the commission of unfair labor practices, the evils which above all else were the object of the Act. Surely the policy of seeking uniformity in the regulation of labor practices must be given closer scrutiny when it leads to the alternative 'solutions' of denying the aggrieved party a hearing or encouraging the commission of a putative unfair labor practice as the price of that hearing. Counsel refused to initiate an unfair labor practice complaint. How much more pressing must those considerations be where the Board is in fact barred from regular adjudication. The 'intensely practical considerations' that we felt governed in Vaca, 386 U.S., at 183, 87 S.Ct., at 913, seem even more practical here, especially in view of the concern expressed in Vaca that the aggrieved party be able to obtain a hearing on his complaint. If the possible refusal of the General Counsel to issue a complaint is a prominent reason for refusing to pre-empt the States, I should think that, a fortiori, his inability to act at all is at least as great a justification for doing away with pre-emption in this situation.

Finally, it must be mentioned that in precluding the aggrieved party from a hearing, we are following a particularly disfavored course. The importance in our jurisprudence of the opportunity for a hearing need not be reviewed, but at the very least it teaches that where persons with otherwise justiciable claims cannot obtain a hearing under the law, the law is subject to close scrutiny to discover the circumstances compelling this result. There is precious little in the Garmon doctrine that justifies its existence as to § 7 activities under this test. Certainly neither the evidence of congressional intent nor the presumed but overdrawn interest in uniformity is adequate to justify denial of a hearing.

Most cases concerning the hearing requirement are those where some adverse consequence is visited upon the individual unless he can explain his side of the story, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), or where there is continuing conflict and dissatisfaction with no tribunal available to fashion relief. Cf. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). The problems seem similar to those facing us here. In a § 7 case, the employer is faced with, for example, picketing that turns away customers and suppliers and inflicts progressive economic injury on the employer. For a small businessman with no forum available for relief, the effect is similar to a wage earner who finds that claims of another have cut his take-home pay in half. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).

The majority's treatment of this important issue is deficient. It says only that treating judicial power to deal with arguably protected activity different from the power to deal with prohibited activity would be 'unsatisfactory,' since '(b)oth areas equally involve conduct whose legality is governed by federal law, the application of which Congress committed to the Board, not courts.' Ante, at 290. I have no quarrel with the first point-by definition federal law will determine if federal law protects the conduct from state proscription; but I hardly see how that alone pre-empts state courts. See Dowd Box, Lucas Flour, Smith v. Evening News; Local 20 Teamsters, Chauffeurs and Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964). As to the second point, the fact is that Congress has not committed the arguably protected area exclusively to the Board. It has provided no mechanism for § 7 cases to get before the Board except where conduct threatens § 7 rights; nor has its functionary, the Board, opened a path to its door for those who seek to ascertain whether conduct threatening them is truly protected by federal law and hence unassailable under local law. Congress found the no-man's land created by Guss unacceptable precisely because there was no way to have rights determined. In terms of congressional intention I find it unsupportable to hold that one threatened by conduct illegal under state law may not proceed against it because it is arguably protected by federal law when he has absolutely no lawful method for detemining whether that is actually, as well as arguably, the case. Particularly is this true where the dispute is between a union and its members and the latter are asserting claims under state law bases on the union constitution. I would permit the state court to entertain the action and if the union defends on the ground that its conduct is protected by federal law, to pass on that claim at the outset of the proceeding. If the federal law immunizes the challenged union action, the case is terminated; but if not, the case is adjudicated under state law.

Mr. Justice BLACKMUN also dissents for the basic reasons set forth by Mr. Justice DOUGLAS and Mr. Justice WHITE in their respective dissenting opinions.