Taggart v. Weinacker's, Inc./Concurrence Burger

Mr. Chief Justice BURGER, concurring.

I am in accord with the Court's action in dismissing this petition as having been improvidently granted. As the opinion of the Court indicates, 'the obscure record' and 'the fact that only a bare remnant of the original controversy remains' cast serious doubt on whether we have enough before us to pass on the claim of the union that it had a First Amendment right to picket on the private premises of the employer.

The obscure record and the atrophied controversy now remaining have little if any impact-I think none-on the issue of whether the State's jurisdiction over this matter is 'pre-empted' by the National Labor Relations Board's primary jurisdiction over labor disputes. In my view any contention that the States are pre-empted in these circumstances is without merit. The protection of private property, whether a home, factory, or store, through trespass laws is historically a concern of state law. Congress has never undertaken to alter this allocation of power, and has provided no remedy to an employer within the National Labor Relations Act (NLRA) to prevent an illegal trespass on his premises. Rather, it has acted against the backdrop of the general application of state trespass laws to provide certain protections to employees through § 7 of the NLRA, 61 Stat. 140, 29 U.S.C. § 157. A holding that the States were precluded from acting would remove the backdrop of state law that provided the basis of congressional action but would leave intact the narrower restraint present in federal law through § 7 and would thereby artificially create a no-law area.

Nothing in San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), would warrant this Court to declare state-law trespass remedies to be ineffective and thus to remit a person to his own self-help resources if he desires redress for illegal trespassory picketing. Garmon left to the States the power to regulate any matter of 'peripheral concern' to the NLRA or that conduct that touches interests 'deeply rooted in local feeling and responsibility.' (359 U.S., at 243, 244, 79 S.Ct., at 779.) Few concepts are more 'deeply rooted' than the power of a State to protect the rights of its citizens. Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), applied the Garmon exceptions to allow state jurisdiction over malicious libel in union organizational literature, recognizing that if the States were precluded from acting, there would be an absence of any legal remedy. The Court there observed that:

'The fact that the Board has no authority to grant effective     relief aggravates to State's concern since the refusal to      redress an otherwise actionable wrong creates disrespect for      the law and encourages the victim to take matters into his      own hands.' 383 U.S., at 64 n. 6, 86 S.Ct., at 664.

A holding that Congress pre-empted this entire area is as inappropriate here as it was in Linn, and for precisely the same reasons. Cf. International Longshoremen's Local 1416, A.F.L.-C.I.O. v. Ariadne Shipping Co., 397 U.S. at 201, 90 S.Ct. at 875, 25 L.Ed.2d at 223 (White, J., concurring).

Separate memorandum of Mr. Justice HARLAN.

I am prompted by the concurring opinion of THE CHIEF JUSTICE in this case, and by the concurring opinion of Mr. Justice WHITE (joined by THE CHIEF JUSTICE and Mr. Justice STEWART) in International Longshoremen's Local 1416, A.F.L.-C.I.O. v. Ariadne Shipping Co., Ltd., 397 U.S. at 201, 90 S.Ct. at 875, 25 L.Ed.2d at 223, to amplify, with the following observations, my vote to grant certiorari and reverse the state judgment in the present case.

I would have thought this an easy case after San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), wherein the Court concluded, in the broadest terms, that conduct that is either 'arbuably protected' or 'arguably prohibited' under the federal labor laws is not subject to regulation by the States. In such cases the Court held that federal law and federal remedies apply to the exclusion of any state rules, and that whether federal law does apply is to be decided in the first instance by the National Labor Relations Board in accordance with the policy of 'primary jurisdiction' established by the National Labor Relations Act. It was concluded that the Board's jurisdiction was pre-emptive notwithstanding the fact that access to the Board was barred by its refusal to exercise jurisdiction because of failure to meet the dollar-amount requirements.

The picketing in the case before us occurred, as found by the Alabama trial court, in the context of a labor dispute, and ultimately took place on private sidewalks maintained by respondent in front of entrances to its building. The trial court also found that there was no violence or threat of violence. Thus, notwithstanding my differences with the Garmon majority, see my concurring opinion, 359 U.S., at 249, 79 S.Ct., at 782, as to whether States are pre-empted from regulating arguably 'unprotected' activities, id., at 253, 79 S.Ct., at 784, I would reverse the decision below since the picketing in this case falls well within the range of what could be considered to be protected under the Act.

While I recognize THE CHIEF JUSTICE's and Mr. Justice WHITE's concern over the hiatus created when the Board does not or cannot assert its jurisdiction, see the concurring opinion of THE CHIEF JUSTICE, ante, at 875, and the concurring opinion of Mr. Justice WHITE in International Longshoremen's Local 1416, A.F.L.-C.I.O. v. Ariadne Shipping Co., Ltd., 397 U.S. at 201, 90 S.Ct. at 875, 25 L.Ed.2d at 223; see also Broomfield, Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity, 83 Harv.L.Rev. 552 (1970), that consideration is foreclosed, correctly in my view, by Garmon. Congress in the National Labor Relations Act erected a comprehensive regulatory structure and made the Board its chief superintendent in order to assure uniformity of application by an experienced agency. Where conduct is 'arguably protected,' diversity of decisions by state courts would subvert the uniformity Congress envisioned for the federal regulatory program. In the absence of any further expression from Congress I would stand by Garmon and foreclose state action with respect to 'arguably protected activities,' until the Board has acted, even if wrongs may occasionally go partially or wholly unredressed.

Nothing in Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S.Ct., 657, 15 L.Ed.2d 582 (1966), is to the contrary. The allusion there to the exacerbating effect of the vacuum created by the Board's inability to 'redress' an 'otherwise actionable wrong' was made in the context of an implicit holding that 'malicious libel,' even though published during a labor campaign, was not 'arguably protected' by the Act and the determination that it was a 'merely peripheral concern of the Labor Management Relations Act.' 383 U.S., at 61, 86 S.Ct., at 662. Linn is far removed from the present case. Cf. International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958).