B. STATE LABOR INJUNCTION LEGISLATION

tate anti-injunction legislation accomplishes its purpose of restrictlabor injunctions with varying and currently diminishing success. enteen States have statutes similar to, but generally less compresive than, Norris-LaGuardia: Connecticut, Idaho, Indiana, LouisiMaine, Maryland, Massachusetts, Minnesota, New Jersey, New k, North Dakota, Oregon, Pennsylvania, Rhode Island, Utah, shington, and Wisconsin.

Vithin these States, qualifications imposed by State legislatures and te courts tend to sap the statutes of their vigor. Legislative issions, restrictive amendments, and judicial construction to the ct that the statutes as procedural measures cannot alter prior mon-law principles controlling labor activities, have weakened se statutes as protective instruments. Judicial literal-mindedness the application of otherwise adequate statutes has resulted in the eptance of devices to bypass the prohibitions of these measures. e past 10 years have seen such an expansion of State judicial trines permitting circumvention of the legislative mandates that i-injunction legislation on the State level is frequently impotent. A traditional judicial device for narrowing the scope of unamended le Norris-LaGuardia acts permits the use of that State substantive which delimits the area of legal labor activities as a criterion of i-injunction statutes' applicability. Originally intended to prevent icial intervention in industrial disputes, those acts prohibited the ance of injunctions regardless of the legality of the activities olved. Criteria of application of the acts were to be the presence à labor dispute and the absence of fraud and violence. State courts, vever, by interpreting the legislative emphasis on nonuse of the inctive remedy as rendering the statute procedural and ineffective alter substantive law, concluded that an activity illegal under te substantive law might still be enjoined.

ince this kind of construction renders the statute declaratory of or equity powers, it has been further buttressed in some States the contention that a contrary interpretation would render the -ute unconstitutional. (The question of Federal legislative power deprive inferior Federal courts of jurisdiction to issue injunctions not proved troublesome under Norris-LaGuardia, because the stitution makes jurisdiction of lower Federal courts subject to gressional regulation.)

the absence of express authorization in State constitutions, it is ed, State legislatures may not effect that curtailment of equitable sdiction implied by adhering to the broad definition of labor dispute d in most anti-injunction statutes. This argument has been conous in States where legislatures are given little or no power to the equity power of courts (cf. comment in 49 Yale Law Journal In Blanchard v. Golden Age Brewing Co. (188 Wash. 396, 63 P. 97 (1936)), the Washington anti-injunction statute was interpreted ithdrawing equity jurisdiction from the courts and was held inunder the State constitution. Subsequent decisions, however, held the statute valid by construing it narrowly. In States like sachusetts, on the other hand, the constitution grants to the legise predominant power over the courts and the argument is without (Mass. Const. pt. II, c. 1, art. III, art. IV).

A further complication has been introduced by restrictive State labor laws. These laws have stimulated end runs around the antiinjunction statutes, and add to the general process of their enervation. State labor legislation has become an increasingly widespread medium for the regulation of employee activities and eight States have created "baby" labor relations boards for the administration of such legisla tion. Since most of the States which have regulated employee activi ties do not have labor boards, the sanctions in these States often include imprisonment and fines (e. g. Fla. Stat. Ann. s. 481.14, Cum. Supp. 1946; Kan. Gen. Stat. Ann. s. 44-814, Cum. Supp. 1947). Minnesota, Michigan, and Kansas provide for enforcement by injunc tion or regular criminal proceedings in court (Minn. Stat. s. 179.14 179.28, Henderson Cum. Supp. 1945; Mich. Stat. Ann. s. 17.454 (24), Henderson Cum. Supp. 1947).

It is equally important to recognize another factor in this connection: In cases involving violation of the provisions prohibiting violence and similar tactics, State labor boards act in effect as injunction-issuing agencies. In Wisconsin, for instance, when unions have been charged only with the use of violence or similar conduct, the Wisconsin Employment Relations Board has not usually outlawed s strike, nor has it ordered a union to cease all picketing. It has merely issued exceedingly detailed instructions as to how picketing should be carried on. In other cases in which a union was conducting & strike which the Wisconsin act makes illegal or in which the objec of the strike was illegal, the Wisconsin board has directed the cessation of all picketing and boycotting. These cease-and-desist orders read much like injunctions. Recourse to the board is as speedy as to the court in Wisconsin, so the use of injunctions is avoided by routing the complaint through board procedure. These orders require court enforcement.

The Norris-LaGuardia Act and State laws similar to it do not forbid courts to issue injunctions against violence and similar unlawf conduct. However, the basic policy of such legislation was to pla primary responsibility for policing labor disputes on law-enforcemen officers. In order to obtain an injunction against unlawful behavior. a complainant who is proceeding under the Norris-LaGuardia Ad must show, inter alia, "that the public officers charged with the duty protect the complainant's property are unable or unwilling to furnish adequate protection" (sec. 7 (e)). Yet the State laws of Wisconsin Pennsylvania, and Colorado, for instance, provide in effect that the complainant may choose among injunction proceedings, a cease-an desist order of the State labor board, or police action.

More importantly, many State courts have tended to overlook the requirement that law enforcement officers must be shown to be power less to control the situation. This is accomplished in a variety ways, chiefly a determination that there is no "labor dispute." ( occasion no such justification is expressed.

As State courts have become more and more amenable to issu injunctions, the Norris-LaGuardia limitations on Federal courts has tended not to eliminate "government by injunction" but to shif large part of the scene from a comparatively few Federal distr courts to innumerable State and local courts.

HE SCOPE OF FEDERAL REGULATION OF LABOR MANAGEMENT
RELATIONS

Federal Government affirmatively entered the field of general management relations in 1935 with the enactment of the Wagner

gave statutory protection to workingmen who combined to in collectively with employers, to strike in aid of that right, to e of employer discrimination and reprisal for doing so and cloaked on freely chosen by a majority of employees with the exclusive to represent employees for bargaining. This came when there o recognized constitutional protection for picketing.

act created an orderly procedure for the administration of its sions. And that administrative vehicle was made the exclusive od of asserting the rights created by the act.

thority for this statutory plan was based upon the commerce > › of the Constitution (Art. I, sec. 8).

forcement of its provisions was strenuously resisted until 1937 the Supreme Court upheld the constitutionality of the act B v. Jones and Laughlin Steel Corp., 301 U. S. 1). Until that on the NLRB itself was engaged in resisting a barrage of injuncuits to prevent its application. Many courts did in fact enjoin oard despite its standing as an agency of the United States. (See Annual Report of the National Labor Relations Act.) Jones ughlin marked the cease-fire on this front, except for isolated ishes which only reenforced the primacy of the Board's power as st suits brought in State and Federal courts.

The salient features of the National Labor Relations Act (the her Act) were as follows:

(1) Statutory guaranty of the right of employees to engage in union activities (sec. 7).

(2) Statutory protection of the right to strike (sec. 13).

(3) Definition of employer unfair labor practices to protect employees in the rights guaranteed by section 7 and to insure collective bargaining with exclusive union representatives.

(4) Requiring exclusive recognition to unions representing a majority of employees.

(5) Election procedures for the choice or rejection by employees of union representatives.

(6) Creation of the NLRB to administer the act.

(7) Granting the Board exclusive authority to administer the act subject only to court review after it acted.

is comprehensive program remained unaltered until 1947. State ity in the labor-management field was stimulated by the passage e NLRA. Several States passed "Little Wagner Acts" and one, consin, enacted legislation of broader scope. The areas in which States operated and attempted to operate will be discussed after sideration of the Taft-Hartley Act inasmuch as the most definijudicial pronouncements of the proper scope of State action came the latter act came into operation.

(B) The Labor-Management Relations Act, 1947 (Taft-Hartley made radical changes in the National Labor Relations Act by amending it. The principal amendments provided:

(1) That employees had the right to refrain from union activity except to the extent that union membership was required by & union-shop agreement;

(2) For prohibition of the closed shop and permission for only a union shop in which failure to procure or loss of union membership could be a cause for discharge only for employee failure to tender initiation fees and dues uniformly required of all members

(3) A definition of "to bargain collectively," which adopted judicial interpretations of the Wagner Act and requires certain notices to Government agencies and between the parties before a strike for a new contract could be conducted;

(4) A new set of union unfair labor practices (8 (b)) which included:

(1) Restraint or coercion of employees in the exercise of their rights under section 7;

(2) Causing or attempting to cause an employer to dis criminate against employees beyond the scope of the limited union shop;

(3) Refusal to bargain;

3

(4) "Secondary boycotts" 3 "jurisdictional disputes"; (5) Excessive or discriminatory initiation fees;

(6) So-called "featherbedding"; 3

(5) for injunctions before hearing, but on application of the Board after investigation if there is reasonable cause to believ that the "secondary boycott" and "jurisdictional dispute" previsions are being violated;

and

(6) Exclusion of supervisors from coverage of the act; and (7) For unions and their officers filing financial reports and non-communist affidavits as a condition of using Board precedures. In addition four new titles were added which provided in maje part:

Title II. Hearing and injunctions on application of the Attorney General in national emergency disputes.

Title III. (a) Private damage suits in Federal courts for breach collective bargaining agreements; (b) limitations on check-off a fund payments; (c) private damage suits for violation of the secondar boycott provisions.

Titles IV and V. Not pertinent to this study.

The vastly enlarged scope of Federal regulation occasioned Taft-Hartley is quite important. Another feature of significars is that Congress rejected many proposals which were similar to b more stringent than those adopted. And other proposals, such as th ban on so-called industrywide bargaining, were not adopted in ar form.

The House bill, for example, made it an unfair labor practice employees to engage in a strike unless the objective was within limited category defined in the bill as proper (sec. 8 (b) (3)); made it an unfair labor practice for minorities to strike by requir

These terms are used because these sections have become generally known by them. However, terms are more comprehensive than the provisions of the sections.

najority strike vote as a condition precedent to the calling of any ike (sec. 8 (c)). The bill also defined a long list of "unlawful certed activities," and in that category included the following: "Picketing an employer's premises for the purpose of leading rsons to believe that there exists a labor dispute involving such ployer, in any case in which the employees are not involved in a or dispute with their employer"; (2) any strike designed to compel employer to recognize a union not certified by the Board under tion 9; (3) any strike designed to remedy an unfair labor practice; d (4) any strike designed to compel an employer to violate any v, regulation, or order issued pursuant to law. The bill provided at persons injured by any of these unlawful acts could sue for mages and injunctive relief in the Federal courts (sec. 12 (b) and )), and that persons found to have engaged in such activity should. deprived of rights under the act.

All of these provisions were rejected,

Both acts were the result of extensive hearings and lengthy debate, he resulting enactments may be deemed to be studied choices of licy. In addition, Taft-Hartley was based upon 12 years of Wagner et experience during a period of widespread union activity. These ctors are of great significance in determining both what Congress anned to regulate and what it determined should be free of regulaThese considerations are an indispensable background for an analysis the proper spheres of Federal and State action in the labor-manageent field. Those areas are determined by constitutional doctrines hich the Supreme Court has enunciated in decades of decisions on e distribution of power in our unique Federal system.

on.

IV. FEDERAL AND STATE JURISDICTION

A. SOME BASIC FACTS

Legislative jurisdiction over labor-management relations is lodged Congress by the commerce clause of the Constitution. This has en held to attach not only to enterprises directly engaged in interte commerce but also to those "affecting" interstate commerce nes & Laughlin, supra). The Supreme Court has held in now toric decisions that relatively small manufacturing and service erprises are subject to Federal jurisdiction and that the Wagner and Taft-Hartley Act exercised the full reach of the commerce

ver.

The supremacy clause of the Constitution provides

his Constitution, and the laws of the United States which shall be made in uance thereof; and all treaties made, or which shall be made, under the authorof the United States, shall be the supreme law of the land; and the judges in y State shall be bound thereby, any thing in the Constitution or laws of State to the contrary notwithstanding.

y simple legal arithmetic the two acts and the supremacy clause up to the exclusion of State legislative action in the field "preted" by this Federal legislation. One principle question to be sidered then is the extent of this preemption.

efore coming to that major question, one other aspect of the probis the extent to which Federal legislative preemption excludes or

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