National Labor Relations Board v. Nash-Finch Co.
Dissenting Opinion
dissenting.
I
The National Labor Relations Board here sues in federal court to enjoin the enforcement of a state court injunction against picketing.
Leiter Minerals, Inc. v. United States, 352 U. S. 220 (1957), held that the restrictions of § 2283 do not apply to the Federal Government. The Board identifies itself with the United States and therefore asserts that § 2283 is inapplicable to it. I cannot agree. The juridical status of the Board is not perfectly congruent with that of the United States. For example, although it may file claims for back pay in bankruptcy proceedings, it does not enjoy the priority accorded to debts owing to the United States. Nathanson v. NLRB, 344 U. S. 25 (1952).
Section 2283 clearly permits injunctions against state court proceedings if “expressly authorized by Act of Congress.” There is no claim here that the injunction sought by the Board is expressly authorized by any statute. Indeed, it is admitted that express authorization is lacking, and we are asked to imply such power. The Court does so, but its holding ignores both the language and the traditional interpretation of § 2283 and is inconsistent with the regulatory scheme of the LMRA.
Section 8 of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, specifies unfair labor practices by employers and unions. Section 9 provides for Board determination of bargaining units and employee representatives. Section 10 specifies the procedures to be employed in preventing unfair labor practices prohibited by § 8. Two aspects of § 10 are critical here. First, the Board is not granted unqualified powers to enforce the Act. The statute conditions Board
Second, after a charge has been filed and an unfair labor practice complaint has been issued the Act grants the Board the power to seek “appropriate temporary relief or restraining order” from the courts. § 10 (j). Further, § 10 (1) specifies in even greater detail the circumstances under which temporary injunctions may be secured when charges under §§ 8 (b) (4) (A), 8(b) (4)(B), 8(b)(4)(C), 8(e), or 8(b)(7) have been filed with the Board. Sections 10 (e) and 10 (f) define the powers of the Board and the courts to issue injunctions in connection with enforcement of Board orders after unfair labor practices have been adjudicated
“The only comment I can make on that statement is that we were very careful in this bill to protect the injunctive process as it is protected in the Norris-LaGuardia Act, except in exceptional cases where the Government has to step in. In national paralysis cases we permit the Attorney General to step in, and in the boycott and jurisdictional strike cases we permit the National Labor Relations Board to step in; and there is no other approach to the courts for injunction except in those two situations.” 93 Cong. Rec. 4283. (Emphasis added.)
In such a context, today’s decision is improvident. As a statutory matter under the Labor Management Relations Act, the Board has no power to seek the injunction it now demands even absent the barriers established by § 2283. And under that section, it is error to clothe the
II
A few additional words are appropriate. Even if, contrary to my view, the Board has power to seek an injunction to prevent interference with § 7 rights absent an unfair labor practice charge, it should not be able to obtain equitable relief by the mere conclusory allegation that such rights are “arguably” protected under the LMRA. Although § 7 rights must be interpreted according to federal law, “Congress has not federalized the entire law of labor relations,” Motor Coach Employees v. Lockridge, 403 U. S. 274, 309 (1971) (White, J., dissenting), nor has it wholly displaced state and federal courts in the administration of federal labor policy.
The employer in this case was subjected to picketing that it thought illegal and unprotected. It sought and was granted a state court injunction over protests that state judicial power was pre-empted by federal law and the exclusive jurisdiction of the NLRB. Rather than allowing the union to appeal the injunction through the state court system, and to this Court if necessary, as the union would ordinarily have to do, Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, supra, the Court today permits the Board to short-circuit that process by securing a federal injunction, solely upon allegations that the conduct of the union was arguably protected under federal law and was within the
Congress’ swift overruling of the Court’s decision in Guss v. Utah Labor Relations Bd., 353 U. S. 1 (1957), by passage of NLRA § 14 (c), 73 Stat. 541, 29 U. S. C. § 164 (c), should make the Court approach with great caution the creation of another "vast no-man’s land, subject to regulation by no agency or court." Id., at 10. The NLRA was not enacted in a void and its strictures presuppose a certain degree of state authority and regulation:
“A holding that the States were precluded from acting [to enforce their trespass laws against invasions of private property] 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.” Taggart v. Weinacker’s, Inc., 397 U. S. 223, 228 (1970) (BüRGer, C. J., concurring) (emphasis in original).
The Board should not, therefore, be able to obtain an injunction by merely alleging that conduct is “argu
Although the Board had held an unfair labor practice hearing and had found the employer guilty of certain unfair labor practices while exonerating it of others, this proceeding is not relevant to the issues in the present case because it did not concern the union’s picketing. The union had originally filed a complaint and an election petition with the Board, charging the employer with a refusal to bargain and with interfering with the employees’ rights to organize. A complaint was issued, and a hearing held. The trial examiner on April 28, 1969, found the employer guilty of certain §8 (a)(1) and §8 (a) (5) unfair labor practices and entered a cease-and-desist order against certain activities of the employer. A month after the trial examiner’s decision, the union began its picketing, and the employer then secured the state court injunction limiting the picketing that is at issue in this case. On August 29, 1969, the Board filed a complaint in federal district court seeking to restrain the employer from enforcing the state court injunction. On September 17, 1969, the Board reversed the decision of the trial examiner and held that the employer was not guilty of a § 8 (a) (5) refusal to bargain nor of certain of the § 8 (a) (1) violations the trial examiner had found, but it found the employer guilty of certain other § 8 (a) (1) infractions and entered a limited cease-and-desist order. Although the picketing occurred contemporaneously with the §8 (a)(1) and §8 (a) (5) unfair labor practice proceeding, it was never an issue before the Board.
In Nathanson, as here, the Board was attempting to protect the § 7 rights of private parties. If anything, the situation in Nathan-son was a much stronger one for equating the status of the Board to that of the United States, since there the Board was seeking to enforce a back pay award (by filing a proof of claim against the employer, who had become a bankrupt, and asserting that its back pay order was entitled to the priority of a debt owing the United States under § 64 (a) (5) of the Bankruptcy Act, 11 U. S. C. § 104 (a)(5)) which it had assessed after adjudicating the employer guilty of a § 8 unfair labor practice. The Board was thus clearly discharging a designated statutory function, as distinguished from the instant case where the Board’s jurisdiction to evaluate the disputed picketing in an unfair labor practice proceeding is totally unclear. The Court held, however, that “[i]t does not follow that because the Board is an agency of the United States, any debt owed it is a debt owing the United States” under the Bankruptcy Act, 344 U. S., at
Both Menihan and the present case present the question of whether a Governmental agency is clothed with a particular attribute of sovereignty: in Menihan, an exemption from payment of costs after unsuccessful litigation under Fed. Rule Civ. Proc. 54 (d) which was afforded to “the United States, its officers, and agencies ... to the extent permitted by law,” in the present case, an implicit exemption from §2283. The Court emphasized that because the doctrine of sovereign immunity gives the Government a privileged position, it has been “appropriately confined,” 312 U. S., at 84, and noted that “the government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work.” Ibid,., quoting Keifer & Keifer v. Reconstruction Finance Corp., 306 U. S. 381, 388 (1939). Since “there is no presumption that the agent is clothed with sovereign immunity,” 312 U. S., at 85, the Court examined the statute establishing the RFC and concluded that there was no affirmative indication by Congress that it had meant to exempt the RFC from paying costs after it had lost a lawsuit.
This rule has been frequently recognized by the Court, United States v. De la Maza Arredondo, 6 Pet. 691, 724 (1832); Kendall v. United States, 107 U. S. 123, 125 (1883); Neuberger v. Commissioner of Internal Revenue, 311 U. S. 83, 88 (1940).
Opinion of the Court
delivered the opinion of the Court.
Title 28 U. S. C. § 2283 provides;
“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”
The question is whether the National Labor Relations Board may, through proceedings in a federal court, en
When a union began organizing employees of certain stores in Grand Island, Nebraska, the union filed unfair labor practice charges against the company. The General Counsel issued a complaint. A hearing was held and a Trial Examiner sustained the complaint and recommended that the company cease and desist. Shortly thereafter and before the Board had acted, the union picketed the stores. The company thereupon petitioned the Nebraska state court for an injunction. The state court issued a restraining order, limiting the pickets to two at each store, enjoining them from blocking or picketing entrances or exits and from distributing literature pertaining to the dispute which would halt or slow trafile, from instigating conversations with customers in any manner relating to the dispute, from mass picketing, from acts of physical coercion against persons driving to work, and from doing any act in violation of Neb. Rev. Stat. § 28-812, which makes unlawful “loitering about, picketing or patrolling the place of work . . . against the will of such person.” The injunction also bans anyone other than a bona fide union . member from picketing unless he becomes a defendant in the state proceedings. Finally, the injunction bars anyone, other than pickets and named defendants, from picketing, distributing handbills, or otherwise “caus[ing] to be pub
Later the Board entered its decision and order accepting in part the Trial Examiner’s recommendations and rejecting parts not material to the present controversy.
The Board then filed this suit in the Federal District Court seeking to restrain the enforcement of the state court injunction on the ground that it regulated conduct which was governed exclusively by the National Labor Relations Act. As noted, both the District Court and the Court of Appeals denied the Board relief. The Court of Appeals held that for the purposes of § 2283 the Board is “an administrative agency of the United States, and is not the United States.” 434 F. 2d, at 975. Congress from the beginning has restricted the authority of the federal judiciary to interfere with state court actions. See Younger v. Harris, 401 U. S. 37, 43-44. The present § 2283 is a revision of earlier provisions of federal statutes which were construed to allow within limits such federal injunctions in favor of federal agencies. Bowles v. Willingham, 321 U. S. 503, 510. Any exception in favor of federal agencies must, however, be “implied,” ibid., unless it comes within the exceptions stated in §2283.
It is suggested that this federal injunction was “in aid” of the jurisdiction of the federal court since the suit is in the District Court by reason of 28 U. S. C. § 1337 which grants jurisdiction over “any civil action or proceeding arising under any Act of Congress regulating commerce.” In Capital Service, Inc. v. NLRB, 347 U. S. 501, an employer invoked the aid both of a state court and of the federal Board against picketing. The Board sought a federal court injunction under § 10 (1) of the Act, 29 U. S. C. § 160 (l), which specifically allows it wherever an unfair labor practice respecting a secondary boycott or picketing violative of § 8 (b) (4) or § 8 (b) (7)
In the instant case the company did not file any charges with the Board which claimed that the union’s picketing violated §8 (b)(4) or §8 (b)(7) of the Act, 73 Stat. 542 and 544, 29 U. S. C. § 158 (b) (4) and § 158 (b)(7).
Section 10 (j) gives the District Court similar authority in respect of an unfair labor practice of the employer under § 8 (a)(1) of the Act which protects the right of employees to organize. But a resort to court action, the Board has held, does not violate § 8 (a)(1). See Clyde Taylor Co., 127 N. L. R. B. 103, 109.
The action in the instant case does not seek an injunction to restrain specific activities upon which the Board has issued a complaint but is based upon the general doctrine of pre-emption. We therefore do not believe this case falls within the narrow exception contained in § 2283 for matters “necessary in aid of its jurisdiction.” There is in the Act no express authority for the Board to seek injunctive relief against pre-empted state action. The question remains whether there is implied authority to do so.
It has long been held that the Board, though not granted express statutory remedies, may obtain appropriate and traditional ones to prevent frustration of the purposes of the Act. We held in In re National Labor Relations Board, 304 U. S. 486, 496, that even in the absence of an express statutory remedy, the Board might petition for writ of prohibition against premature invo
“The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce.”
The purpose of the Act was to obtain “uniform application” of its substantive rules and to avoid the “diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.” Garner v. Teamsters Union, 346 U. S. 485, 490. The federal regulatory scheme (1) protects some activities, though not violence (see United Mine Workers v. Gibbs, 383 U. S. 715, 729-731), (2) prohibits some practices, and (3) leaves others to be controlled by the free play of economic forces. We said in Garner v. Teamsters Union, supra, at 500:
“For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits.”
In Leiter Minerals, Inc. v. United States, 352 U. S. 220, a state suit over mineral rights in public lands was pending, the parties being private persons. The United States brought suit in the federal court to quiet title to the mineral rights and sought and obtained a federal injunc
“The statute is designed to prevent conflict between federal and state courts. This policy is much more compelling when it is the litigation of private parties which threatens to draw the two judicial systems into conflict than when it is the United States which seeks a stay to prevent threatened irreparable injury to a national interest. The frustration of superior federal interests that would ensue from precluding the Federal Government from obtaining a stay of state court proceedings except under the severe restrictions of 28 U. S. C. § 2283 would be so great that we cannot reasonably impute such a purpose to Congress from the general language of 28 U. S. C. § 2283 alone.” Id., at 225-226.
In Leiter, the United States brought suit under the authority of the Attorney General. Here it is the Board that moved to prevent “irreparable injury to a national interest.” The Board is the sole protector of the “national interest”
The fact that the Board is given express authority to seek enforcement of its orders in some sections of the Act
Whether there are parts of the state court injunction
Reversed and remanded.
For the history of present § 2283 see H. R. Rep. No. 308, 80th Cong., 1st Sess., A181.
The basis of our decision in Nathanson was that “[t]he priority granted by [§ 64 (a) (5), 11 U. S. C. § 104 (a) (5)] ... was designed ‘to secure an adequate revenue to sustain the public burthens and discharge the public debts.’ ” 344 U. S., at 27-28. Because there was “no function ... of assuring the public revenue” and “[t]he beneficiaries of the claims [were] private persons,” id., at 28, we found it inappropriate to apply the priority for claims owing the United States and, instead, gave the claims the same “treatment tha[t] other wage claims enjoy[ed].” Id., at 29. The suggestion that Nathanson is a stronger case for equating the status of the Board to that of the United States disregards both the policies of the Bankruptcy Act upon which we relied in that decision and the federal pre-emption which inheres in the present case.
Cases such as Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U. S. 81, do not support a miserly interpretation of the Board’s powers. There, we held that costs of litigation could be assessed against a corporation which Congress had launched into the commercial world with the power to “sue and be sued.” Contrary to the dissent’s assertion that the case turned on the failure of Congress to manifest an intent “to bestow the privileges and immunities of the United States on a federal agency,” post, at 150, our decision there was based upon the grant of “the unqualified authority to sue and be sued [which] placed petitioner upon an equal footing with private parties as to the usual incidents of suits in relation to the payment of costs and allowances.” 312 U. S., at 85-86.
Amalgamated Clothing Workers v. Richman Bros. Co., 348 U. S. 511, held that a private party under the protection of the Board’s order could not obtain injunctive relief in a federal court against an anti-picketing order issued by a state court. And see Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U. S. 281.
Actions against the National Labor Relations Board are dismissed on the ground that they are against a federal agency exercising a governmental regulatory function and so are suits against the United States, which cannot be sued without the consent of Congress. Clover Fork Coal Co. v. NLRB, 107 F. 2d 1009. The same holds for the Atomic Energy Commission, Cotter Corp. v. Seaborg, 370 F. 2d 686; the Civil Service Commission, Soderman v. U. S. Civil Service Commission, 313 F. 2d 694; the Veterans Administration, Evans v. U. S. Veterans Admin. Hospital, 391 F. 2d 261; and the Securities and Exchange Commission, Holmes v. Eddy, 341 F. 2d 477. Similarly, an action by the Director General of Railroads was held to be on behalf of the United States and thus was not barred by the relevant statute of limitations. Davis v. Corona Coal Co., 265 U. S. 219.
Congress has vested the Board with broad powers to seek in-junctive relief in the district courts. Section 10 (1), 29 U. S. C. § 160 (Z), for example, gives the Board power to obtain an injunction where an investigation produces reasonable cause to believe that a charge of secondary boycott or illegal picketing activity is true. Section 10 (j), 29 U. S. C. § 160 (j), provides a similar basis of power for other unfair labor practices. “In case of contumacy or refusal to obey a subpena issued to any person” during “hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of [its] powers” under §§ 9 and 10, 29 U. S. C. §§ 159 and 160, the Board may seek injunctive relief from a district court requiring compliance. 29 U. S. C. §161 (2).
Reference
- Full Case Name
- NATIONAL LABOR RELATIONS BOARD v. NASH-FINCH CO., Dba JACK & JILL STORES
- Cited By
- 218 cases
- Status
- Published