Hanna Mining Company v. District 2, Marine Engineers Beneficial Association/Concurrence Brennan

Mr. Justice BRENNAN, concurring.

I agree with the Court that § 14(a) does not evince a congressional decision to exclude state regulation of picketing aimed at organizing supervisors and securing the employer's recognition of the union. The question here, however, is whether Congress has excluded state regulation when that picketing also has secondary aspects arguably within the reach of § 8(b)(4)(B). I agree with the Court that state regulation is likewise not precluded in such case.

The proviso to § 8(b)(4)(B) expressly states '(t)hat nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.' (Emphasis supplied.) While Congress thus provided that primary picketing is not rendered unlawful under the Act merely by having secondary aspects, the italicized words of the proviso evince a congressional intention to leave undisturbed whatever other provisions of law regulate primary picketing. Ordinarily such regulation occurs under the National Labor Relations Act. The primary aspects of supervisory picketing are not, however, regulated by the federal Act; and I think the assumption that regulation will occur, which underlies the italicized words of the proviso is strong enough to support the Court's conclusion that state regulation of supervisory organizational picketing is not preempted.

It is true that we said in Garmon that States have no power to regulate 'activities' arguably subject to the federal Act; picketing which, because of its secondary aspects, is arguably subject to § 8(b)(4)(B) is, by one construction, an 'activity.' But Garmon was not a case in which only incidental aspects of picketing were arguably subject to federal power and in which the alternative to state regulation was a regulatory void which Congress plainly assumed would not exist. In this limited context, it is permissible to distinguish the primary from the secondary aspects of the picketing, and hold that the States may regulate the former, although preempted as to the latter, and although the necessary effect of regulation curbs both secondary and primary aspects of the picketing. This choice seems more consistent with the congressional meaning, since the alternative is to immunize the primary aspects of such common-situs picketing from state regulation, and that alternative finds no support either in policy or in the statute. Thus, I think that the Wisconsin courts may consider so much of the complaint as is addressed to the primary aspects of MEBA's picketing.