ITT Lamp Division of Int. Telephone & T. Corp. v. Minter, No. 7720

• Decision Date: 14 December 1970
• Docket Number: 7749.,No. 7720
• Citation: 435 F.2d 989
• Parties: ITT LAMP DIVISION of the INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, Plaintiff, Appellant, v. Stephen A. MINTER, Commissioner of the Massachusetts Department of Public Welfare, Defendant, Appellee. MAURICE CONCRETE PRODUCTS, INC., Plaintiff, Appellant, v. Stephen A. MINTER, Commissioner of the Massachusetts Department of Public Welfare, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

435 F.2d 989 (1970)

ITT LAMP DIVISION of the INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, Plaintiff, Appellant, v. Stephen A. MINTER, Commissioner of the Massachusetts Department of Public Welfare, Defendant, Appellee.

MAURICE CONCRETE PRODUCTS, INC., Plaintiff, Appellant, v. Stephen A. MINTER, Commissioner of the Massachusetts Department of Public Welfare, Defendant, Appellee.

Nos. 7720, 7749.

United States Court of Appeals, First Circuit.

December 14, 1970.

Jerome H. Somers, Boston, Mass., with whom Louis Chandler, Stoneman & Chandler, Boston, Mass., Matthew E. Murray, Andrew M. Kramer, and Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., were on the brief, for appellants.

William E. Searson, III, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., was on the brief, for appellee.

Before ALDRICH, Chief Judge, McENTREE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

These two cases,¹ combined for purposes of appeal, present the question whether the defendant Commissioner of the Massachusetts Department of Public Welfare is wrongfully intruding in a labor dispute by making available welfare benefits to strikers who otherwise qualify under Massachusetts statutes providing for General Welfare and Aid to Families with Dependent Children, Mass.G.L. cc. 117 and 118. Plaintiffs claim that such state action alters the relative economic strength of the parties, thus entering a field preempted by the national policy guaranteeing free collective bargaining, in violation of the Supremacy Clause of the Constitution. Plaintiffs' motions for injunctive relief were denied, the district court finding no evidence of irreparable injury and no reasonable probability of success on the merits.² Although the strike against ITT was subsequently settled, the issue, we know from our own experience, has earlier vainly sought appellate review in this circuit and is likely again to be raised, bringing it close to the "recurring question" category, where significant public rights are involved and court review ought not, if possible, be avoided. See So. Pac. Terminal Co. v. I.C.C., 219 U.S. 498, 515-516, 31 S.Ct. 279, 55 L.Ed. 310 (1911) and Marchand v. Director, U.S. Probation Office, 421 F.2d 331 (1st Cir.1970). In any event, however, the appeal of Maurice Concrete presents the identical question.

Plaintiffs have not contended in their brief that the district court erred in finding that there was "no evidence to show to what extent the receipt of welfare payments will affect the continuation of the strike" but have based their claim of irreparable injury on the alleged interference with collective bargaining constituted by the present and prospective payments of welfare benefits.³ Since at least one of the appeals presents a case where a substantial number of strikers might possibly have qualified for welfare, we prefer to accept plaintiffs' assumption that the issue of irreparable harm merges into and becomes indistinguishable from the issue of probable success on the merits. That is to say that if indeed it is probable that the present and prospective provision of welfare to indigent strikers would be held to frustrate the collective bargaining process, it is equally probable that irreparable injury would be suffered.

We therefore move to the question whether plaintiffs have demonstrated sufficient probability of prevailing on the merits. Automatic Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113, 115-116 (1st Cir.), cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968). So far as our research indicates, this is the first occasion on which a federal court has considered a confrontation between the national policy of free collective bargaining and the administration of a state's welfare laws. For nearly four decades the preemptive sweep of this national policy has, from Allen-Bradley Local 1111, UEW v. Wisconsion Emp. Rel. Bd., 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942) to Local 100, United Association of Journeymen & Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963), been interpreted by the Supreme Court in the context of real or potential conflict between federal and state tribunals in deciding issues arising out of activities protected or proscribed by sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. §§ 157, 158,⁴ with occasional favorable consideration bestowed on state law invoked to prevent or compensate for acts of violence⁵ or for verbal excesses.⁶ All of the commentaries that have come to our attention have carried on the labor policy preemption debate in terms of these lines of cases with no mention of the problem posed by these appeals.⁷ While we do not know how long the challenged application of the Massachusetts Welfare Laws has existed, we know that New York has so administered its laws for eighteen years, Lascaris v. Wyman, 61 Misc.2d 212, 305 N.Y.S.2d 212, 216 (1969), and Illinois for twenty years, Strat-O-Seal Mfg. Co. v. Scott, 72 Ill.App.2d 480, 218 N.E.2d 227 (1966). This vacuum of case and comment on the issue at hand, while perhaps to be explained by the mooting of cases by strike settlements before the issue is reached, makes us pause before declaring probable the preemptive bar of federal labor policy as applied to the historic state preserve of welfare.

The very novelty of the issue posed by the appeals places it outside of the focus of San Diego Building Trades v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed. 2d 775 (1958), its ancestors and progeny. For Garmon, a deliberate effort by the Court to clarify standards relating to preemption in the labor-management field, was concerned with the specific subject matter of sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. §§ 157, 158 — the protection of concerted activities and the proscription of unfair labor practices — both responsibilities having been vested in a single tribunal, the National Labor Relations Board. The bar against state action in Garmon, therefore, covers state regulation of conduct or activities which are clearly or arguably "within the compass" of sections 7 and 8 and therefore within the sole jurisdiction of the Board. Garmon, supra at 245, 79 S.Ct. 773. The administration of state welfare programs so as to render eligible individual strikers who otherwise qualify does not even arguably fall within the zone delineated in Garmon.

What we therefore confront is the question of applying the Supremacy Clause to a non-Garmon situation, where the asserted conflict is not an invasion by the state into an area of conduct regulated by a national instrumentality but a tangential frustration of the national policy objective of unfettered collective bargaining by state economic sustenance of some of the individuals who participate in federally protected, concerted activity. In such a situation, a balancing process seems called for under the general approach to preemption followed by the Supreme Court, in which both the degree of conflict and the relative importance of the federal and state interests are assessed. Note, Federal Preemption: Governmental Interests and the Role of the Supreme Court, Duke L.J. 484, 510, 511 (1966). Where Congress has not clearly manifested its purpose to exclude state action which takes the form of exercise of its historic police powers, such state action will not be invalidated under the Supremacy Clause, "in the absence of persuasive reasons", Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or unless the administration of the state law "palpably infringes" upon the federal policy. Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 766, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). See also Head v. New Mexico Bd. of Examiners, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963); Buck v. California, 343 U.S. 99, 72 S.Ct. 502, 96 L.Ed. 775 (1952).⁸

On neither count — the issue of extent of conflict or the relative strength of the federal and state interests — would we feel confident in any a priori judgment. A court would first have to determine the quantum of impact on collective bargaining stemming from the granting of welfare benefits to strikers. If this is found substantial a court would then have to weigh the impact on the state of declaring needy strikers and their families ineligible for welfare against the extent to which making them eligible stripped state government of its neutrality in a labor-management dispute.

Such weighing exercises could not be restricted to an ad hoc exploration of the microcosm of these particular disputes. A court must deal with "classes of situations" and not "judgments on the impact of * * * particular conflicts on the entire scheme of federal labor policy and administration", Garmon, supra, 359 U.S. at 242, 79 S.Ct. at 778. Under such an approach, a court would be interested in how many states permit strikers to receive welfare; whether or not strikes tend to be of longer duration where welfare is received; any studies or expert testimony evaluating the impact of eligibility for benefits on the strikers' resolve; a comparison between strike benefits and welfare benefits; the impact of the requirement that welfare recipients accept suitable employment; how many strikers actually do receive welfare benefits; and a host of other factors. In addition, the state's legitimate interests must also be considered: its interests in minimizing hardship to families of strikers who have no other resources than the weekly pay check, its concern in avoiding conditions that could lead to violence, its interest in forestalling economic stagnation in local communities, etc.⁹

This very catalogue of data relevant to a macrocosmic weighing, which a court, if called upon would have to undertake, indicates the preferable forum to be the Congress. Congress would be particularly appropriate in resolving this issue. The activity allegedly intruding...