Brotherhood of Railroad Trainmen v. Jacksonville Terminal Company/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice STEWART concur, dissenting.

Respondent provides terminal facilities for four railroads at Jacksonville, Florida. Petitioners have a longstanding labor dispute with one of those carriers, Florida East Coast. They have established a picket line, manned by employees of FEC but established at all entrances and exits to the Terminal and not restricted to the single entrance designated for use by FEC employees. The conceded purpose of the picketing was to cause respondent and the other three carriers not to interchange traffic with FEC.

Petitioner Brotherhood of Railroad Trainmen however, has no labor dispute with any carrier using the Terminal except FEC. The Florida court found that the pattern of picketing being used 'would result in a virtual cessation of activities not only of the Terminal Company but also of numerous industries in Duval County and * *  * Florida.'

The order entered barred all picketing by FEC employees except at the designated single entrance. The trial court relied, inter alia, on the ground tha '(t)he past and threatened picketing seeks to coerce plaintiff (respondent) into embargoing the FEC in violation of the Restraint of Trade Laws of this State.' The laws referred to are Fla.Stat. § 542.01 et seq., F.S.A., which set up a broad regulatory scheme banning 'a combination of capital, skill or acts by two or more persons' to 'create or carry out restrictions in trade or commerce.' The District Court of Appeal, in affirming the trial court in the present case, said that it 'exercised a proper authority in enjoining a violation of a valid state statute.' 201 So.2d 253, 254.

The question therefore is whether Florida may ban picketing in support of a secondary boycott.

Congress could pre-empt this field of picketing any rail carrier for purposes of a secondary boycott as our rail carriers and their labor problems are conspicuously within reach of the Commerce Clause. Congress in the Labor Management Relations Act of 1947, 29 U.S.C. § 141 et seq. did legislate on secondary boycotts. 29 U.S.C. § 158(b)(4)(i)(B). But it expressly excluded from that regulatory scheme any employer subject to the Railway Labor Act,' § 152(2), and any individual employed by such person, § 152(3).

We are therefore in an area where Congress has not legislated and, as I see it, the case is controlled by Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834.

In Giboney, Missouri applied its antitrade-restraint law to enjoin a union from picketing employers to enforce a secondary boycott. We stated that the basic issue was 'whether Missouri or a labor union has paramount constitutional power to regulate and govern the manner in which certain trade practices shall be carried on' in Missouri. 336 U.S., at 504, 69 S.Ct., at 691. A State's power over secondary boycotts was held to be paramount; and that is what we should hold today, since Congress has not pre-empted the subject.

It is suggested that there is an hiatus which this Court should fill. To do so, we would have to fill in large gaps between the Railway Labor Act, 45 U.S.C. § 151 et seq. and many other specialized Acts of Congress that touch on pieces of the problems of labor in the railroad field. Once the remedies provided in the Railway Labor Act are exhausted, federal administrative remedies are at an end. No authority is empowered to settle the dispute; no compulsory arbitration is provided. The conditions of work may be as bad as the employees suffer them to be and made as good as they can agree upon through bargaining. When the various procedures established by the Act are exhausted, 'both parties * *  * are relegated to self-help in ad usting' the dispute. Brotherhood of Locomotive Engineers v. Baltimore & O.R. Co., 372 U.S. 284, 291, 83 S.Ct. 691, 695, 9 L.Ed.2d 759.

Legislating interstitially is one thing; judicial insertion into our federal railway labor law of rules governing secondary boycotts is formulation of national policy in the raw. Whether it should be done and, if so, how, are matters for the Senate and the House.

The effort of the Court to find support for this secondary boycott in federal law is a masterful endeavor. The opinion is indeed a brilliant brief for a federal law to support the struggle of petitioners to end the ugly conflict The difficulty is that no matter how carefully federal law is examined no express sanction for what petitioners can do can be found. Federal authority for what they do rests on the thinnest of inferences and yet that inference is brought under the Supremacy Clause.

Article VI of the Constitution states that: 'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof * *  * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby *  *  * .' But one looks in vain for any federal 'law' that collides with state law or that can be said to pre-empt state law. Federal law says that when the parties exhaust their remedies under the Railway Labor Act they may resort to 'self-help'-not a congressional phrase but a judicial gloss put on the Act. Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 725, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886. But it is strong medicine to say that their right to 'self-help' overrides state law. Certainly it does not when violence is used to injure people and destroy property. AllenBradley Local No. 1111, United Electrical, Radio and Machine Workers of America v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154. For then the States have an arsenal of authority to deal with the situation. Why is that power greater than the power to protect the economy of the area? We have a finding that, if the conduct which the Court authorizes continues, there will be serious injury to 'numerous industries in Duval County'-industries that have no responsibility for the labor dispute.

The question, says the Court, is whether 'the States could prohibit the parties from engaging in any self-help.' If that is true, then the Act's scheme would be impaired. But that is not the issue. It is whether the State can prevent a secondary boycott which threatens to paralyze a whole community. If a State cannot fill that hiatus in a federal scheme, then much law will have to be unlearned.

States' rights are often used as a cloak to cover unconstitutional encroachments such as the maintenance of second-class citizenship for Negroes or Americans of Mexican ancestry. But a state policy to confine an industrial dispute to the parties and, if possible, not to let it paralyze the entire community cannot be put in that category.

Congress in adopting a federal regulation can make it exclusive of all state regulation, in which event one may not be required 'by a State to do more or additional things or conform to added regulations, even though they in no way conflicted with what was demanded of him under the Federal Act.' Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 236, 67 S.Ct. 1146, 1155, 91 L.Ed. 1447. And see Campbell v. Hussey, 368 U.S. 297, 300-301, 82 S.Ct. 327, 328-329, 7 L.Ed.2d 299. But that principle, though uniformly recognized, has provoked much dissent in its application, as the dissents in the Rice and Campbell cases illustrate.

As Mr. Justice Brandeis said in Napier v. Atlantic Coast Line, 272 U.S. 605, 611, 47 S.Ct. 207, 209, 71 L.Ed. 432, 'The intention of Congress to exclude States from exerting their police power must be clearly manifested.' And the Court, mindful of the force of the Tenth Amendment and the place of the States in our constitutional system, has resolved close cases in favor of a continuing power on the part of the States to legislate in thei customary fields and thus has permitted state regulations to mesh with federal controls. See Federal Compress & Warehouse Co. v. McLean, 291 U.S. 17, 54 S.Ct. 267, 78 L.Ed. 622; Townsend v. Yeomans, 301 U.S. 441, 454, 57 S.Ct. 842, 848, 81 L.Ed. 1210; Penn Dairies v. Milk Control Commission, 318 U.S. 261, 63 S.Ct. 617, 87 L.Ed. 748.

Even here, there have been dissents when it came to particular applications of the principle to the facts of a case. But I venture that in no case prior to today's decision has a State been barred from legislating in a field which is not specifically touched by the federal regulation and which remains after the federal remedies have spent themselves and proved to be of no avail.

The States should be allowed a free hand in labor controversies except and unless Congress has adopted a contrary policy. We search in vain for any such federal law in this context.

I would affirm the judgment.