Lodge 76, International Association of Machinists and Aerospace Workers v. Wisconsin Employment Relations Commission

• Citation: 427 U.S. 132,96 S.Ct. 2548,49 L.Ed.2d 396
• Decision Date: 25 June 1976
• Docket Number: No. 75-185,AFL-CIO,75-185
• Parties: LODGE 76, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,, et al., Petitioners, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION et al
• Court: United States Supreme Court

427 U.S. 132

96 S.Ct. 2548

49 L.Ed.2d 396

LODGE 76, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, et al., Petitioners,

v WISCONSIN EMPLOYMENT RELATIONS COMMISSION et al.

No. 75-185.

Argued March 22, 1976.

Decided June 25, 1976.

Syllabus

During negotiations for renewal of an expired collective-bargaining agreement with respondent employer, petitioner union and its members engaged in a concerted refusal to work overtime. The employer filed a charge with the National Labor Relations Board (NLRB), claiming that such refusal was an unfair labor practice under the National Labor Relations Act (NLRA), but the charge was dismissed on the ground that the refusal did not violate the NLRA and therefore was not conduct cognizable by the NLRB. The employer also filed an unfair labor practice complaint with respondent Wisconsin Employment Relations Commission, which held that such refusal, while neither protected nor prohibited by the NLRA, was an unfair labor practice under state law, and entered a cease-and-desist order against the union. The Wisconsin Circuit Court affirmed and entered a judgment enforcing the order, and the Wisconsin Supreme Court affirmed. Held: The union's concerted refusal to work overtime was peaceful conduct constituting activity that must be free of state regulation if the congressional intent in enacting the comprehensive federal law of labor relations is not to be frustrated. Congress meant that self-help economic activities, whether of employer or employee, were not to be regulable by States any more than by the NLRB, for neither States nor the NLRB is "afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful." NLRB v. Insurance Agents, 361 U.S. 477, 498, 80 S.Ct. 419, 432, 4 L.Ed.2d 454, rather, both are without authority to attempt to "introduce some standard of properly 'balanced' bargaining power," Id., at 497, 80 S.Ct., at 431, or to define what "economic functions might be permitted negotiating parties in an 'ideal' or 'balanced' state of collective bargaining." Id., at 500, 80 S.Ct., at 433. International Union, U. Automobile Workers A. A. F. of L., Local 232 v. Wisconsin Emp. Rel. Bd., 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651 (Briggs-Stratton case), overruled. Pp. 136-155.

67 Wis.2d 13, 226 N.W.2d 203, reversed.

Gerry M. Miller, Milwaukee, Wis., for petitioners.

Norton J. Come, Washington, D. C., for N. L. R. B., as amicus curiae.

James C. Mallatt, Milwaukee, Wis., for respondents.

Mr. Justice BRENNAN delivered the opinion of the Court.

The question to be decided in this case is whether federal labor policy pre-empts the authority of a state labor relations board to grant an employer covered by the National Labor Relations Act an order enjoining a union and its members from continuing to refuse to work overtime pursuant to a union policy to put economic pressure on the employer in negotiations for renewal of an expired collective-bargaining agreement.

A collective-bargaining agreement between petitioner Lodge 76 (Union) and respondent Kearney & Trecker Corp. (employer) was terminated by the employer pursuant to the terms of the agreement on June 19, 1971. Gd-faith bargaining over the terms of a renewal agreement continued for over a year thereafter, finally resulting in the signing of a new agreement effective July 23, 1972. A particularly controverted issue during negotiations was the employer's demand that the provision of the expired agreement under which, as for the prior 17 years, the basic workday was seven and one-half hours, Monday through Friday, and the basic workweek was 371/2 hours, be replaced with a new provision providing a basic workday of eight hours and a basic workweek of 40 hours, and that the terms on which overtime rates of pay were payable be changed accordingly.

A few days after the old agreement was terminated the employer unilaterally began to make changes in some conditions of employment provided in the expired contract, E. g., eliminating the checkoff of Union dues, eliminating the Union's office in the plant, and eliminating Union lost time. No immediate change was made in the basic workweek or workday, but in March 1972, the employer announced that it would unilaterally implement, as of March 13, 1972, its proposal for a 40-hour week and eight-hour day. The Union response was a membership meeting on March 7 at which strike action was authorized and a resolution was adopted binding Union members to refuse to work any overtime, defined as work in excess of seven and one-half hours in any day or 371/2 hours in any week. Following the strike vote, the employer offered to "defer the implementation" of its workweek proposal if the Union would agree to call off the concerted refusal to work overtime. The Union, however, refused the offer and indicated its intent to continue the concerted ban on overtime. Thereafter, the employer did not make effective the proposed changes in the workday and workweek before the new agreement became effective on July 23, 1972. Although all but a very few employees complied with the Union's resolution against acceptance of overtime work during the negotiations, the employer did not discipline, or attempt to discipline, any employee for refusing to work overtime.

Instead, while negotiations continued, the employer filed a charge with the National Labor Relations Board that the Union's resolution violated § 8(b)(3) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. § 158(b)(3). The Regional Director dismissed the charge on the ground that the "policy prohibiting overtime work by its member employees . . . does not appear to be in violation of the Act" and therefore was not conduct cognizable by the Board under NLRB v. Insurance Agents, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960). However, the employer also filed a complaint before the Wisconsin Employment Relations Commission charging that the refusal to work overtime constituted an unfair labor practice under state law. The Union filed a motion before the Commission to dismiss the complaint for want of "jurisdiction over the subject matter" in that jurisdiction over "the activity of the (Union) complained of (is) pre-empted by" the National Labor Relations Act. App. 11. The motion was denied and the Commission adopted the Conclusion of Law of its Examiner that "the concerted refusal to work overtime, is not an activity which is arguably protected under Section 7 or arguably prohibited under Section 8 of the National Labor Relations Act, as amended, and . . ., therefore, the . . . Commission is not pre-empted from asserting its jurisdiction to regulate said conduct." The Commission also adopted the further Conclusion of Law that the Union "by authorizing . . . the concerted refusal to work overtime . . . engaged in a concerted effort to interfere with production and . . . committed an unfair labor practice within the meaning of Section 111.06(2)(h). . . ." ¹ The Commsion thereupon entered an order that the Union, Inter alia, "(i)mmediately cease and desist from authorizing, encouraging or condoning any concerted refusal to accept overtime assignments . . . ." The Wisconsin Circuit Court affirmed and entered judgment enforcing the Commission's order. The Wisconsin Supreme Court affirmed the Circuit Court. 67 Wis.2d 13, 226 N.W.2d 203 (1975). We granted certiorari, 423 U.S. 890, 96 S.Ct. 186, 46 L.Ed.2d 121 (1975). We reverse.

I

"The national . . . Act . . . leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible." Garner v. Teamsters, Chauffeurs and Helpers Local Union, 346 U.S. 485, 488, 74 S.Ct. 161, 164, 98 L.Ed. 228 (1953). Federal labor policy as reflected in the National Labor Relations Act, as amended, has been construed not to preclude the States from regulating aspects of labor relations that involve "conduct touch(ing) interests so deeply rooted in local feeling and responsibility that . . . we could not infer that Congress had deprived the States of the power to act." San Diego Building Trades Council, Millmen's Union v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). Policing of actual or threatened violence to persons or destruction of property has been held most clearly a matter for the States.² Similarly, the federal law governing labor relations does not withdraw "from the States . . . power to regulate where the activity regulated (is) a merely peripheral concern of the Labor Management Relations Act." Id., at 243, 79 S.Ct., at 779.³ Cases that have held state authority to be pre-empted by federal law tend to fall into one of two categories: (1) those that reflect the concern that "one forum would enjoin, as illegal, conduct which the other forum would find legal" and (2) those that reflect the concern "that the (application of state law by) state courts would restrict the exercise of rights guaranteed by the Federal Acts." Automobile Workers v. Russell, 356 U.S. 634, 644, 78 S.Ct. 932, 938, 2 L.Ed.2d 1030 (1958). "(I)n referring to decisions holding state laws pre-empted by the NLRA, care must be taken to distinguish pre-emption based on federal protection of the conduct in question . . . from that based predominantly on the primary jurisdiction of the National Labor Relations Board . . ., although the two are often not easily separable." Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383 n. 19, 89 S.Ct. 1109, 1118, 22 L.Ed.2d 344 (1969). Each of these distinct aspects of labor law pre-emption has had its own history in our decisions, to which we now turn.

We consider first pre-emption based predominantly on the primary jurisdiction of the Board. This line of pre-emption analysis was developed in San Diego Unions v. Garmon, supra, and its...