National Maritime Union of America, AFL-CIO v. City of Norfolk

• Decision Date: 24 April 1961
• Docket Number: AFL-CI,ETC,No. 5199,5199
• Court: Virginia Supreme Court
• Parties: , 48 L.R.R.M. (BNA) 2233, 42 Lab.Cas. P 50,238 NATIONAL MARITIME UNION OF AMERICA,, ET AL. v. CITY OF NORFOLK. Record

Page 307

119 S.E.2d 307

202 Va. 672, 48 L.R.R.M. (BNA) 2233, 42 Lab.Cas. P 50,238

NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, ETC., ET AL. v. CITY OF NORFOLK.

Record No. 5199.

Supreme Court of Appeals of Virginia

April 24, 1961.

Sidney H. Kelsey, for the appellants.

T. L. Sawyer and Toy D. Savage, Jr. (Leonard H. Davis, City Attorney; Jonathan W. Old; Willcox, Cooke, Savage and Lawrence, on brief), for the appellee.

JUDGE: CARRICO

CARRICO, J., delivered the opinion of the court.

National Maritime Union of America, AFL-CIO, Joseph Curran, John T. Dillon and Joseph J. Carleno, in their own behalf and on behalf of the membership of the National Maritime Union, and NMU Realties, Inc., filed a bill of complaint against the City of Norfolk, under the Declaratory Judgment Act, Title 8, Sections 578-585, Code of Virginia, 1950, seeking to have declared void and unconstitutional Section 18 of the Zoning Ordinance of the City of Norfolk, as it applied to the complainants. After the defendant filed its answer, the court heard the case and held the ordinance to be valid and constitutional. Complainants were granted an appeal.

Complainant NMU Realties, Inc., is the owner of certain real property, located in the 1100 block of Boissevain Avenue in the City of Norfolk. The National Maritime Union, AFL-CIO, a labor union composed of seamen engaged in the shipping industry in interstate commerce, desired to construct and operate, on this real property, a union hiring hall. The union had, since 1937, maintained a hiring hall at various locations in the City of Norfolk, and since 1947, had occupied a building for such purpose at 334 West York Street, in Norfolk. This latter property was condemned for the construction of a highway, and as a result, the Boissevain Avenue property was acquired for a new location of the hiring hall.

The City had adopted its first comprehensive zoning ordinance in 1924, placing the area within its limits in various districts for residential, commercial and manufacturing uses. The 1924 ordinance contained no requirement for a use permit for a desired activity within a proper district. In 1950, the City adopted a new zoning ordinance, reclassifying the various districts in the city, in accordance with an over-all plan, and in addition, adopted Section 18, now in question before us. This section required the obtaining of a use permit, from the City Council, for twenty-one enumerated uses (later increased to twenty-seven), which did not originally include hiring halls.

On February 13, 1951, the City Council amended its zoning ordinance so as to permit hiring halls to be located in certain districts, but also amended Section 18 by requiring a use permit for 'hiring halls and other places of assembly for or the assignment of employment' in districts C-2 through M-3. These latter designations refer to different types of commercial and manufacturing districts. For example, the M-2 district, in which the complainants' Boissevain Avenue property is located, is a light manufacturing district.

In June, 1957, complainant union filed its application for a use permit for a hiring hall on its Boissevain Avenue property. In accordance with the provisions of Section 18 of the zoning ordinance, the City Planning Commission held a hearing on the application, and thereafter recommended to the City Council against the granting of the use permit. On February 4, 1958, after a hearing, the City Council refused to grant the use permit.

The complainants first filed an action in the District Court of the United States for the Eastern District of Virginia, seeking to nullify the action of the City Council. On the motion of the City, the proceedings in the United States Court were stayed, but the court retained the cause on its docket for a reasonable time to afford the complainants an opportunity to proceed in the State courts of this commonwealth 'to determine the constitutionality and construction of the ordinance of the City of Norfolk. ' The case now before us was filed as a result of this action by the United States Court.

The complainants have assigned a number of errors to the action of the lower court, some of which they have not urged in argument before us, and which we will, therefore, not consider. In any event the complainants agree that this appeal presents two questions to be decided by this Court, as follows:

1. Does the ordinance of the City of Norfolk, in requiring complainants to obtain a use permit for their hiring hall, invade a field which has been preempted by the United States so as to preclude control by State and local action?

2. Does the ordinance have valid standards and criteria to guide the City Council in its actions relating to the granting and denying of use permits thereunder?

Complainants concede the constitutionality of the basic zoning ordinance, and the City's right, by such zoning ordinance, to exclude their hiring hall from all zoning districts in the city except C-2 through M-3. Their sole objection is to Section 18 of the ordinance.

The gist of complainants' first contention is that since Congress has legislated in the field of labor-management, as it affects interstate commerce, it has preempted this field, and the state and local governments are powerless to deal with the same subject. They rely on provisions of the National Labor Relations Act, 61 Stat. 140, 65 Stat. 601; 29 U.S.C.A. 157, 158, to support their position, and assert that the ordinance in question infringes on this preempted Federal authority.

The question of Federal preemption in the complex field of labormanagement relations has had a long and perplexing history, in both Federal and State courts. Numerous cases involving Federal versus State power in the labor field have been decided by the Supreme Court of the United States since Congress first legislated in this field. In some instances the right of the States to act in the field has been denied, but in other instances it has been upheld. Typical of the cases denying state action are the following:

Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.ed. 1782, holding invalid a Florida statute requiring licensing of business agents of unions, filing of reports and payments of fees by unions, and providing for injunctive relief for failure to comply.

International Union, etc. v. O'Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.ed. 978, striking down a Michigan statute which prescribed prerequisites for striking.

Amalgamated Assoc., etc. v. Wisconsin Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.ed. 364, declaring void a state statute under which injunction had been issued and which made it compulsory to arbitrate in public utility labor disputes.

Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.ed. 228, voiding a state court injunction restraining unfair labor practices not involving violence.

Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.ed. 546, denying state power to enjoin, under state restraint of trade statute, unfair labor practices which may reasonably be deemed to come under the National Labor Relations Act.

San Diego Building Trades Council v. Garmon, et al. 359 U.S. 236, 79 S.Ct. 773, 3 L.ed.2d 775, denying state court authority to award damages for losses resulting from peaceful picketing.

Typical of those cases decided by the Supreme Court of the United States upholding state action in the labor field are the following:

Carpenters Union v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.ed. 1143, upholding a state court's injunction, issued under state anti-trust statute, restraining picketing by union whose grievance with employer was that he had contracted to have a building erected in another location by a builder who employed non-union labor.

Allen-Bradley Local, etc. v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.ed. 1154, upholding state board's prohibition of threatening and obstructive tactics and mass picketing by a labor union.

International Union, etc. v. Wisconsin Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.ed. 651, upholding state board's order against union's unlawful strike activity.

Algoma Plywood Co. v. Wisconsin Board, 336 U.S. 301, 69 S.Ct. 584, 93 L.ed. 691, upholding state statute forbidding maintenance of membership clause in union contract unless the contract is approved by two-thirds of the employees in a referendum conducted by state board.

Plumbers Union v. Graham, 345 U.S. 192, 73 S.Ct. 585, 97 L.ed. 946, upholding the right of a state court to enjoin picketing to force an employer to violate the Virginia right to work statute.

United Construction Workers v. Laburnum, 347 U.S. 656, 74 S.Ct. 833, 98 L.ed. 1025, another Virginia case, upholding an award of damages by a state court against a union for threatening and intimidating action in a labor dispute.

Complainants rely on Sections 7 and 8 of the National Labor Relations Act, 61 Stat. 140, 29 U.S.C.A. 157, 65 Stat. 601, 29 U.S.C.A. 158. Section 7 secures to employees covered by the act the right of self organization and of collective bargaining, or the right to refrain from such activities. Section 8 delineates certain unfair labor practices on the part of both employers and employees that are proscribed.

From an analysis of the National Labor Relations Act and the cases decided interpreting the Act, it is clear that Congress has not occupied and closed the field of labor relations affecting interstate commerce to the exclusion of the States' traditional authority to exercise their police power, provided the state action does not contravene the provisions of the Act.

It is well settled that the power of a state to legislate in the exercise of its police power is coordinate with the power of the Federal government to legislate in matters affecting interstate commerce.

It is also an established principle that an intention of Congress to exclude the States from exerting their police power must be...