International Union v. Wisconsin Employment Relations Board/Dissent Douglas

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

This strike was legal under the Wagner Act in 1945 and 1946 and its legality was not affected by the Labor Management Act of 1947. I think, therefore, that the effort of Wisconsin to make it unlawful must fail because it conflicts with the national policy.

Section 13 of the Wagner Act is written in language too plain to admit of doubt or ambiguity: 'Nothing in this Act shall be construed so as to interfere with or impede or diminish in anyway the right to strike.' The Court held in National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U.S. 240, 256, 59 S.Ct. 490, 496, 83 L.Ed. 627, 123 A.L.R. 599, that by this provision Congress 'recognized the right to strike,-that the employees could lawfully cease work at their own volition because of the failure of the employer to meet their demands.' The congressional policy of protection of strikes as economic sanctions is now converted into a congressional policy of hands off.

If the States can outlaw this strike, I see no reason why they cannot adopt regulations which determine the manner in which strikes may be called in these interstate industries. Can they in practical effect outlaw strikes by requiring a unanimous vote of the workers in order to call one? The federal Board is not authorized, it is said, to forbid or control strikes because of the method by which they are called or the way in which they are utilized. If that is the criterion, as the Court declares, then the manner of calling of strikes is left wholly to the States. The right to strike, which Congress has sanctioned, can in that way be undermined by state action. The federal policy thus becomes a formula of empty words.

That conclusion is made all the more surprising when § 13 of the Act is read in conjunction with § 7 which provides, 'Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual air or protection.' (Italics added.) Section 7 read in conjunction with § 13 must mean that one of the 'concerted activities' in which employees may engage is to strike in these interstate industries. In all of labor's history no 'concerted activity' has been more conspicuous and important than the strike; and none was thought to be more essential to recognition of the right to collective bargaining. Moreover, the strike historically and in the present cases was used to make effective the collectiv bargaining power which § 7 of the Wagner Act guarantees. The right to strike, recognized by § 13, is thus an integral part of the federal labor-management policy.

Section 7 was invoked in Allen-Bradley Local No. 1111, United Electrical Radio and Machine Workers of America v. Wisconsin Employment Relations Board, 315 U.S. 740, 750, 62 S.Ct. 820, 826, 86 L.Ed. 1154, to challenge as unconstitutional Wisconsin's regulation of picketing, threats, and violence in connection with labor disputes. We disallowed the defense, holding that those matters were problems within the reach of the traditional police power of the States and remained there after passage of the federal Act because it had not undertaken to regulate them.

The Wagner Act, to be sure, did not undertake to give the federal agency control over the manner of calling strikes or the purpose for which they may be called. To that extent these cases have common ground with the Allen-Bradley decision. But there the similarity ends. In Allen-Bradley, supra, the Congress had not expressed a policy on picketing, threats or violence in connection with labor disputes. In this case, as § 13 read in conjunction with § 7 makes plain, it has adopted a policy on strikes.

It is the presence of a conflicting federal policy that determines whether state action must give way under the Supremacy Clause, even though there may be no actual or potential collision between federal and state administrative agencies. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447. In Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, a state regulation of the licensing of business agents of unions subject to the federal Act was held to be in conflict with the Wagner Act not because the federal Board had any licensing jurisdiction but because the state law interfered with the freedom of collective bargaining guaranteed by § 7 of the Act. The present cases follow a fortiori, if the strike is included in the 'concerted activities' guaranteed by § 7.

The concerted activities in these cases were as old as labor's struggle for existence and were aimed at (as well as a part of) the purposes which § 7 of the federal Act was designed to protect. Therefore the legality of the methods used is exclusively a question of federal law.