decided: May 15, 1978.
SEARS, ROEBUCK & CO
SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Blackmun, J., post, p. 208, and Powell, J., post, p. 212, filed concurring opinions. Brennan, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 214.
[ 436 U.S. Page 182]
MR. JUSTICE STEVENS delivered the opinion of the Court.
The question in this case is whether the National Labor Relations Act, as amended,*fn1 deprives a state court of the power to entertain an action by an employer to enforce state trespass laws against picketing which is arguably -- but not definitely -- prohibited or protected by federal law.
On October 24, 1973, two business representatives of respondent Union visited the department store operated by petitioner (Sears) in Chula Vista, Cal., and determined that certain carpentry work was being performed by men who had not been dispatched from the Union hiring hall. Later that day, the Union agents met with the store manager and requested that Sears either arrange to have the work performed by a contractor who employed dispatched carpenters or agree in writing to abide by the terms of the Union's master labor agreement with respect to the dispatch and use of carpenters. The Sears manager stated that he would consider the request, but he never accepted or rejected it.
Two days later the Union established picket lines on Sears' property. The store is located in the center of a large rectangular lot. The building is surrounded by walkways and a large parking area. A concrete wall at one end separates the lot from residential property; the other three sides adjoin public sidewalks which are adjacent to the public streets. The pickets patrolled either on the privately owned walkways next to the building or in the parking area a few feet away. They carried signs indicating that they were sanctioned by the "Carpenters Trade Union." The picketing was peaceful and orderly.
Sears' security manager demanded that the Union remove
[ 436 U.S. Page 183]
the pickets from Sears' property. The Union refused, stating that the pickets would not leave unless forced to do so by legal action. On October 29, Sears filed a verified complaint in the Superior Court of California seeking an injunction against the continuing trespass; the court entered a temporary restraining order enjoining the Union from picketing on Sears' property. The Union promptly removed the pickets to the public sidewalks.*fn2 On November 21, 1973, after hearing argument on the question whether the Union's picketing on Sears' property was protected by state or federal law, the court entered a preliminary injunction.*fn3 The California Court of Appeal affirmed. While acknowledging the pre-emption guidelines set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236,*fn4 the court held that the Union's continuing trespass fell within the longstanding exception for conduct which touched interests so deeply rooted in local feeling and responsibility that pre-emption could not be inferred in the absence of clear evidence of congressional intent.*fn5
[ 436 U.S. Page 184]
The Supreme Court of California reversed. 17 Cal. 3d 893, 553 P. 2d 603. It concluded that the picketing was arguably protected by § 7 of the Act, 29 U. S. C. § 157, because it was intended to secure work for Union members and to publicize Sears' undercutting of the prevailing area standards for the employment of carpenters. The court reasoned that the trespassory character of the picketing did not disqualify it from arguable protection, but was merely a factor which the National Labor Relations Board would consider in determining whether or not it was in fact protected. The court also considered it "arguable" that the Union had engaged in recognitional picketing subject to § 8 (b)(7)(C) of the Act, 29 U. S. C. § 158 (b)(7)(C), which could not continue for more than 30 days without petitioning for a representation election. Because the picketing was both arguably protected by § 7 and arguably prohibited by § 8, the court held that state jurisdiction was pre-empted under the Garmon guidelines.
Since the Wagner Act was passed in 1935, this Court has not decided whether, or under what circumstances, a state court has power to enforce local trespass laws against a union's peaceful picketing.*fn6 The obvious importance of this problem led us to grant certiorari in this case. 430 U.S. 905.*fn7
[ 436 U.S. Page 185]
We start from the premise that the Union's picketing on Sears' property after the request to leave was a continuing trespass in violation of state law.*fn8 We note, however, that the scope of the controversy in the state court was limited. Sears asserted no claim that the picketing itself violated any state or federal law. It sought simply to remove the pickets from its property to the public walkways, and the injunction issued by the state court was strictly confined to the relief sought. Thus, as a matter of state law, the location of the picketing was illegal but the picketing itself was unobjectionable.
As a matter of federal law, the legality of the picketing was unclear. Two separate theories would support an argument by Sears that the picketing was prohibited by § 8 of the NLRA, and a third theory would support an argument by the Union that the picketing was protected by § 7. Under each of these theories the Union's purpose would be of critical importance.
If an object of the picketing was to force Sears into assigning the carpentry work away from its employees to Union members
[ 436 U.S. Page 186]
dispatched from the hiring hall, the picketing may have been prohibited by § 8 (b)(4)(D).*fn9 Alternatively, if an object of the picketing was to coerce Sears into signing a prehire or members-only type agreement with the Union, the picketing was at least arguably subject to the prohibition on recognitional picketing contained in § 8 (b)(7)(C).*fn10 Hence, if Sears had filed an unfair labor practice charge against the Union, the Board's concern would have been limited to the question whether the Union's picketing had an objective proscribed by the Act; the location of the picketing would have been irrelevant.
On the other hand, the Union contends that the sole objective of its action was to secure compliance by Sears with
[ 436 U.S. Page 187]
area standards, and therefore the picketing was protected by § 7. Longshoremen v. Ariadne Shipping Co., 397 U.S. 195. Thus, if the Union had filed an unfair labor practice charge under § 8 (a)(1) when Sears made a demand that the pickets leave its property, it is at least arguable that the Board would have found Sears guilty of an unfair labor practice.
Our second premise, therefore, is that the picketing was both arguably prohibited and arguably protected by federal law. The case is not, however, one in which "it is clear or may fairly be assumed" that the subject matter which the state court sought to regulate -- that is, the location of the picketing -- is either prohibited or protected by the Federal Act.
In San Diego Building Trades Council v. Garmon, 359 U.S. 236, the Court made two statements which have come to be accepted as the general guidelines for deciphering the unexpressed intent of Congress regarding the permissible scope of state regulation of activity touching upon labor-management relations. The first related to activity which is clearly protected or prohibited by the federal statute.*fn11 The second articulated a more sweeping prophylactic rule:
"When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations
[ 436 U.S. Page 188]
Board if the danger of state interference with national policy is to be averted." Id., at 245.
While the Garmon formulation accurately reflects the basic federal concern with potential state interference with national labor policy, the history of the labor pre-emption doctrine in this Court does not support an approach which sweeps away state-court jurisdiction over conduct traditionally subject to state regulation without careful consideration of the relative impact of such a jurisdictional bar on the various interests affected.*fn12 As the Court noted last Term:
"Our cases indicate . . . that inflexible application of the doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State's interest is one that does not threaten undue interference with the federal regulatory scheme." Farmer v. Carpenters, 430 U.S. 290, 302.
Thus the Court has refused to apply the Garmon guidelines in a literal, mechanical fashion.*fn13 This refusal demonstrates that
[ 436 U.S. Page 189]
"the decision to pre-empt . . . state court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies" of permitting the state court to proceed. Vaca v. Sipes, 386 U.S. 171, 180.*fn14
[ 436 U.S. Page 190]
With this limitation in mind, we turn to the question whether pre-emption is justified in a case of this kind under either the arguably protected or the arguably prohibited branch of the Garmon doctrine. While the considerations underlying the two categories overlap, they differ in significant respects and therefore it is useful to review them separately. We therefore first consider whether the arguable illegality of the picketing as a matter of federal law should oust the state court of jurisdiction to enjoin its trespassory aspects. Thereafter, we consider whether the arguably protected character of the picketing should have that effect.
The enactment of the NLRA in 1935 marked a fundamental change in the Nation's labor policies. Congress expressly recognized that collective organization of segments of the labor force into bargaining units capable of exercising economic power comparable to that possessed by employers may produce benefits for the entire economy in the form of higher wages, job security, and improved working conditions. Congress decided that in the long run those benefits would outweigh the occasional costs of industrial strife associated with the organization of unions and the negotiation and enforcement of collective-bargaining agreements. The earlier notion that union activity was a species of "conspiracy" and that strikes and picketing were examples of unreasonable restraints of trade was replaced by an unequivocal national declaration of policy establishing the legitimacy of labor unionization and encouraging the practice of collective bargaining.*fn15
[ 436 U.S. Page 191]
The new federal statute protected the collective-bargaining activities of employees and their representatives and created a regulatory scheme to be administered by an independent agency which would develop experience and expertise in the labor relations area. The Court promptly decided that the federal agency's power to implement the policies of the new legislation was exclusive and the States were without power to enforce overlapping rules.*fn16 Accordingly, attempts to apply provisions of the "Little Wagner Acts" enacted by New York*fn17 and Wisconsin*fn18 were held to be pre-empted by the potential conflict with the federal regulatory scheme. Consistently with these holdings, the Court also decided that a State's employment relations board had no power to grant relief for violation of the federal statute.*fn19 The interest in uniform development of the new national labor policy required that matters which fell squarely within the regulatory jurisdiction of the federal Board be evaluated in the first instance by that agency.
The leading case holding that when an employer grievance against a union may be presented to the National Labor Relations
[ 436 U.S. Page 192]
Board it is not subject to litigation in a state tribunal is Garner v. Teamsters, 346 U.S. 485. Garner involved peaceful organizational picketing which arguably violated § 8 (b)(2) of the federal Act.*fn20 A Pennsylvania equity court held that the picketing violated the Pennsylvania Labor Relations Act and therefore should be enjoined. The State Supreme Court reversed because the union conduct fell within the jurisdiction of the National Labor Relations Board to prevent unfair labor practices.
This Court affirmed because Congress had "taken in hand this particular type of controversy . . . [in] language almost identical to parts of the Pennsylvania statute," 346 U.S., at 488. Accordingly, the State, through its courts, was without power to "adjudge the same controversy and extend its own form of relief." Id., at 489. This conclusion did not depend on any surmise as to "how the National Labor Relations Board might have decided this controversy had petitioners presented it to that body." Ibid. The precise conduct in controversy was arguably prohibited by federal law and therefore state jurisdiction was pre-empted. The reason for pre-emption was clearly articulated:
"Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. Indeed, Pennsylvania passed a statute the same year as its labor relations Act reciting abuses of the injunction in labor litigations attributable more to procedure and usage than to substantive rules. A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law. The same
[ 436 U.S. Page 193]
reasoning which prohibits federal courts from intervening in such cases, except by way of review or on application of the federal Board, precludes state courts from doing so. Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41; Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261." Id., at 490-491 (footnote omitted). "The conflict lies in remedies . . . . [When] two separate remedies are brought to bear on the same activity, a conflict is imminent." Id., at 498-499.
This reasoning has its greatest force when applied to state laws regulating the relations between employees, their union, and their employer.*fn21 It may also apply to certain laws of general applicability which are occasionally invoked in connection with a labor dispute.*fn22 Thus, a State's antitrust law may not be invoked to enjoin collective activity which is also arguably prohibited by the federal Act. Capital Service, Inc. v. NLRB, 347 U.S. 501; Weber v. Anheuser-Busch, Inc., 348 U.S. 468.*fn23 In each case, the pertinent inquiry is whether
[ 436 U.S. Page 194]
the two potentially conflicting statutes were "brought to bear on precisely the same conduct." Id., at 479.*fn24
On the other hand, the Court has allowed a State to enforce
[ 436 U.S. Page 195]
certain laws of general applicability even though aspects of the challenged conduct were arguably prohibited by § 8 of the NLRA. Thus, for example, the Court has upheld state-court jurisdiction over conduct that touches "interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." San Diego Building Trades Council v. Garmon, 359 U.S., at 244. See Construction Workers v. Laburnum Constr. Corp., 347 U.S. 656 (threats of violence); Youngdahl v. Rainfair, Inc., 355 U.S. 131 (violence); Automobile Workers v. Russell, 356 U.S. 634 (violence); Linn v. Plant Guard Workers, 383 U.S. 53 (libel); Farmer v. Carpenters, 430 U.S. 290 (intentional infliction of mental distress).
In Farmer, the Court held that a union member, who alleged that his union had engaged in a campaign of personal abuse and harassment against him, could maintain an action for damages against the union and its officers for the intentional infliction of emotional distress. One aspect of the alleged campaign was discrimination by the union in hiring hall referrals.
[ 436 U.S. Page 196]
Although such discrimination was arguably prohibited by §§ 8 (b)(1)(A) and 8 (b)(2) of the NLRA and therefore an unfair labor practice charge could have been filed with the Board, the Court permitted the state action to proceed.
The Court identified those factors which warranted a departure from the general pre-emption guidelines in the "local interest" cases. Two are relevant to the arguably prohibited branch of the Garmon doctrine.*fn25 First, there existed a significant state interest in protecting the citizen from the challenged conduct. Second, although the challenged conduct occurred in the course of a labor dispute and an unfair labor practice charge could have been filed, the exercise of state jurisdiction over the tort claim entailed little risk of interference with the regulatory jurisdiction of the Labor Board. Although the arguable federal violation and the state tort arose in the same factual setting, the respective controversies
[ 436 U.S. Page 197]
presented to the state and federal forums would not have been the same.*fn26
The critical inquiry, therefore, is not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to (as in Garner) or different from (as in Farmer) that which could have been, but was not, presented to the Labor Board. For it is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garmon doctrine was designed to avoid.*fn27
[ 436 U.S. Page 198]
In the present case, the controversy which Sears might have presented to the Labor Board is not the same as the controversy presented to the state court. If Sears had filed a charge, the federal issue would have been whether the picketing had a recognitional or work-reassignment objective; decision of that issue would have entailed relatively complex factual and legal determinations completely unrelated to the simple question whether a trespass had occurred.*fn28 Conversely, in the state action, Sears only challenged the location of the picketing; whether the picketing had an objective proscribed by federal law was irrelevant to the state claim. Accordingly, permitting the state court to adjudicate Sears' trespass claim would create no realistic risk of interference with the Labor Board's primary jurisdiction to enforce the statutory prohibition against unfair labor practices.
The reasons why pre-emption of state jurisdiction is normally appropriate when union activity is arguably prohibited by federal law plainly do not apply to this situation; they therefore are insufficient to preclude a State from exercising jurisdiction limited to the trespassory aspects of that activity.
[ 436 U.S. Page 199]
The question whether the arguably protected character of the Union's trespassory picketing provides a sufficient justification for pre-emption of the state court's jurisdiction over Sears' trespass claim involves somewhat different considerations.
Apart from notions of "primary jurisdiction,"*fn29 there would be no objection to state courts' and the NLRB's exercising concurrent jurisdiction over conduct prohibited by the federal Act. But there is a constitutional objection to state-court interference with conduct actually protected by the Act.*fn30
[ 436 U.S. Page 200]
Considerations of federal supremacy, therefore, are implicated to a greater extent when labor-related activity is protected than when it is prohibited. Nevertheless, several considerations persuade us that the mere fact that the Union's trespass was arguably protected is insufficient to deprive the state court of jurisdiction in this case.
The first is the relative unimportance in this context of the "primary jurisdiction" rationale articulated in Garmon. In theory, of course, that rationale supports pre-emption regardless of which section of the NLRA is critical to resolving a controversy which may be subject to the regulatory jurisdiction of the NLRB. Indeed, at first blush, the primary-jurisdiction rationale provides stronger support for pre-emption in this case when the analysis is focused upon the arguably protected, rather than the arguably prohibited, character of the Union's conduct. For to the extent that the Union's picketing was arguably protected, there existed a potential overlap between the controversy presented to the state court
[ 436 U.S. Page 201]
and that which the Union might have brought before the NLRB.*fn31 Prior to granting any relief from the Union's continuing trespass, the state court was obligated to decide that the trespass was not actually protected by federal law, a determination which might entail an accommodation of Sears' property rights and the Union's § 7 rights. In an unfair labor practice proceeding initiated by the Union, the Board might have been required to make the same accommodation.*fn32
Although it was theoretically possible for the accommodation issue to be decided either by the state court or by the Labor Board, there was in fact no risk of overlapping jurisdiction in this case. The primary-jurisdiction rationale justifies pre-emption only in situations in which an aggrieved party has a reasonable opportunity either to invoke the Board's jurisdiction himself or else to induce his adversary to do so. In this case, Sears could not directly obtain a Board ruling on the question whether the Union's trespass was federally protected. Such a Board determination could have been obtained only if the Union had filed an unfair labor practice charge alleging that Sears had interfered with the Union's § 7 right to engage in peaceful picketing on Sears' property. By demanding that the Union remove its pickets from the store's property, Sears in fact pursued a course of action which gave the Union
[ 436 U.S. Page 202]
the opportunity to file such a charge. But the Union's response to Sears' demand foreclosed the possibility of having the accommodation of § 7 and property rights made by the Labor Board; instead of filing a charge with the Board, the Union advised Sears that the pickets would only depart under compulsion of legal process.
In the face of the Union's intransigence, Sears had only three options: permit the pickets to remain on its property; forcefully evict the pickets; or seek the protection of the State's trespass laws. Since the Union's conduct violated state law, Sears legitimately rejected the first option. Since the second option involved a risk of violence, Sears surely had the right -- perhaps even the duty -- to reject it. Only by proceeding in state court, therefore, could Sears obtain an orderly resolution of the question whether the Union had a federal right to remain on its property.
The primary-jurisdiction rationale unquestionably requires that when the same controversy may be presented to the state court or the NLRB, it must be presented to the Board. But that rationale does not extend to cases in which an employer has no acceptable method of invoking, or inducing the Union to invoke, the jurisdiction of the Board.*fn33 We are therefore persuaded that the primary-jurisdiction rationale does not provide a sufficient justification for pre-empting state jurisdiction over arguably protected conduct when the party who
[ 436 U.S. Page 203]
could have presented the protection issue to the Board has not done so and the other party to the dispute has no acceptable means of doing so.*fn34
This conclusion does not, however, necessarily foreclose the possibility that pre-emption may be appropriate. The danger of state interference with federally protected conduct is the principal concern of the second branch of the Garmon doctrine. To allow the exercise of state jurisdiction in certain contexts might create a significant risk of misinterpretation of federal law and the consequent prohibition of protected conduct. In those circumstances, it might be reasonable to infer that Congress preferred the costs inherent in a jurisdictional hiatus to the frustration of national labor policy which might accompany the exercise of state jurisdiction. Thus, the acceptability of "arguable protection" as a justification for pre-emption in a given class of cases is, at least in part, a function of the strength of the argument that § 7 does in fact protect the disputed conduct.
[ 436 U.S. Page 204]
The Court has held that state jurisdiction to enforce its laws prohibiting violence,*fn35 defamation,*fn36 the intentional infliction of emotional distress,*fn37 or obstruction of access to property*fn38 is not pre-empted by the NLRA. But none of those violations of state law involves protected conduct. In contrast, some violations of state trespass laws may be actually protected by § 7 of the federal Act.
In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, for example, the Court recognized that in certain circumstances non-employee union organizers may have a limited right of access to an employer's premises for the purpose of engaging in organization solicitation.*fn39 And the Court has indicated that Babcock extends to § 7 rights other than organizational activity, though the "locus" of the "accommodation of § 7 rights and private property rights . . . may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context." Hudgens v. NLRB, 424 U.S. 507, 522.
For purpose of analysis we must assume that the Union could have proved that its picketing was, at least in the absence of a trespass, protected by § 7. The remaining question is whether under Babcock the trespassory nature of the
[ 436 U.S. Page 205]
picketing caused it to forfeit its protected status. Since it cannot be said with certainty that, if the Union had filed an unfair labor practice charge against Sears, the Board would have fixed the locus of the accommodation at the unprotected end of the spectrum, it is indeed "arguable" that the Union's peaceful picketing, though trespassory, was protected. Nevertheless, permitting state courts to evaluate the merits of an argument that certain trespassory activity is protected does not create an unacceptable risk of interference with conduct which the Board, and a court reviewing the Board's decision, would find protected. For while there are unquestionably examples of trespassory union activity in which the question whether it is protected is fairly debatable, experience under the Act teaches that such situations are rare and that a trespass is far more likely to be unprotected than protected.
Experience with trespassory organizational solicitation by nonemployees is instructive in this regard. While Babcock indicates that an employer may not always bar non-employee union organizers from his property, his right to do so remains the general rule. To gain access, the union has the burden of showing that no other reasonable means of communicating its organizational message to the employees exists or that the employer's access rules discriminate against union solicitation.*fn40 That the burden imposed on the union is a heavy one is evidenced by the fact that the balance struck by the Board and the courts under the Babcock accommodation principle has rarely been in favor of trespassory organizational activity.*fn41
[ 436 U.S. Page 206]
Even on the assumption that picketing to enforce area standards is entitled to the same deference in the Babcock accommodation analysis as organizational solicitation,*fn42 it would be unprotected in most instances. While there does exist some risk that state courts will on occasion enjoin a trespass that the Board would have protected, the significance of this risk is minimized by the fact that in the cases in which the argument in favor of protection is the strongest, the union is likely to invoke the Board's jurisdiction and thereby avoid the state forum. Whatever risk of an erroneous state-court adjudication does exist is outweighed by the anomalous consequence of a rule which would deny the employer access to any forum in which to litigate either the trespass issue or the
[ 436 U.S. Page 207]
protection issue in those cases in which the disputed conduct is least likely to be protected by § 7.
If there is a strong argument that the trespass is protected in a particular case, a union can be expected to respond to an employer demand to depart by filing an unfair labor practice charge; the protection question would then be decided by the agency experienced in accommodating the § 7 rights of unions and the property rights of employers in the context of a labor dispute. But if the argument for protection is so weak that it has virtually no chance of prevailing, a trespassing union would be well advised to avoid the jurisdiction of the Board and to argue that the protected character of its conduct deprives the state court of jurisdiction.
As long as the union has a fair opportunity to present the protection issue to the Labor Board, it retains meaningful protection against the risk of error in a state tribunal. In this case the Union failed to invoke the jurisdiction of the Labor Board,*fn43 and Sears had no right to invoke that jurisdiction and could not even precipitate its exercise without resort to self-help. Because the assertion of state jurisdiction in a case of this kind does not create a significant risk of prohibition of protected conduct, we are unwilling to presume that Congress intended the arguably protected character of the Union's conduct to deprive the California courts of jurisdiction to entertain Sears' trespass action.*fn44
[ 436 U.S. Page 208]
The judgment of the Supreme Court of California is therefore reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
17 Cal. 3d 893, 553 P. 2d 603, reversed and remanded.
MR. JUSTICE BLACKMUN, concurring.
I join the Court's opinion, but add three observations:
1. The problem of a no-man's land in regard to trespassory picketing has been a troubling one in the past because employers have been unable to secure a Labor Board adjudication whether the picketing was "actually protected" under § 7 of the National Labor Relations Act except by resorting to self-help to expel the pickets and thereby inducing the union to file an unfair labor practice charge. The unacceptable possibility of precipitating violence in such a situation called into serious question the practicability there of the Garmon pre-emption test, see Longshoremen v. Ariadne Shipping Co., 397 U.S. 195, 202 (1970) (WHITE, J., concurring), despite the virtues of the Garmon test in ensuring uniform application of the standards of the NLRA.
In this case, however, the NLRB as amicus curiae has taken a position that narrows the no-man's land in regard to trespassory picketing, namely, that an employer's mere act of informing non-employee pickets that they are not permitted
[ 436 U.S. Page 209]
on his property "would constitute a sufficient interference with rights arguably protected by Section 7 to warrant the General Counsel, had a charge been filed by the Union, in issuing a Section 8 (a)(1) complaint" against the employer. Brief for NLRB as Amicus Curiae 18. Hence, if the union, once asked to leave the property, files a § 8 (a)(1) charge, there is a practicable means of getting the issue of trespassory picketing before the Board in a timely fashion without danger of violence.
In this case, as the Court notes, the Union failed to file an unfair labor practice charge after being asked to leave. In such a situation pre-emption cannot sensibly obtain because the "risk of an erroneous state-court adjudication . . . is outweighed by the anomalous consequence of a rule which would deny the employer access to any forum in which to litigate either the trespass issue or the protection issue." Ante, at 206-207. It should be made clear, however, that the logical corollary of the Court's reasoning is that if the union does file a charge upon being asked by the employer to leave the employer's property and continues to process the charge expeditiously, state-court jurisdiction is pre-empted until such time as the General Counsel declines to issue a complaint or the Board, applying the standards of NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), rules against the union and holds the picketing to be unprotected. Similarly, if a union timely files a § 8 (a)(1) charge, a state court would be bound to stay any pending injunctive or damages suit brought by the employer until the Board has concluded, or the General Counsel by refusal to issue a complaint has indicated, that the picketing is not protected by § 7. As the Court also notes, ante, at 202, the primary-jurisdiction rationale articulated in Garmon "unquestionably requires that when the same controversy may be presented to the state court or the NLRB, it must be presented to the Board." Once the no-man's land has been bridged, as it is once a union files a charge, the importance of
[ 436 U.S. Page 210]
deferring to the Labor Board's case-by-case accommodation of employers' property rights and employees' § 7 rights mandates pre-emption of state-court jurisdiction.*fn*
2. The opinion correctly observes, ante, at 205, that in implementing this Court's decision in Babcock the NLRB only occasionally has found trespassory picketing to be protected under § 7. That observation is important, as is noted,
[ 436 U.S. Page 211]
likelihood of such interference will depend in large part on whether the state courts take care to provide an adversary hearing before issuing any restraint against union picketing activities. In this case, Sears filed a verified complaint seeking an injunction against the picketing on October 29, 1973. The Superior Court of California entered a temporary restraining order that day. So far as the record reveals, the Union was not accorded a hearing until November 16, on the order to show cause why a preliminary injunction should not be entered. The issue of a prompt hearing was apparently not raised before the Superior Court and was not raised on appeal, and hence does not enter into our judgment here approving the exercise of state-court jurisdiction. But it may be remiss not to observe that in labor-management relations, where ex parte proceedings historically were abused, see F. Frankfurter & N. Greene, The Labor Injunction 60, 64-66 (1930), it is critical that the state courts provide a prompt adversary hearing, preferably before any restraint issues and in all events within a few days thereafter, on the merits of the § 7 protection question. Labor disputes are frequently short lived, and a temporary restraining order issued upon ex parte application may, if in error, render the eventual finding of § 7 protection a hollow vindication.
MR. JUSTICE POWELL, concurring.
Although I join the Court's opinion, MR. JUSTICE BLACKMUN's concurrence prompts me to add a word as to the "no-man's land" discussion with respect to trespassory picketing. MR. JUSTICE BLACKMUN, relying on the amicus brief of the National Labor Relations Board, observes that "there is a practicable means of getting the issue of trespassory picketing before the Board in a timely fashion without danger of violence," ante, at 209, if the union -- having been requested to leave the property -- files a § 8 (a)(1) charge.
With all respect, this optimistic view overlooks the realities of the situation. Trespass upon private property by pickets,
[ 436 U.S. Page 213]
to a greater degree than isolated trespass, is usually organized, sustained, and sometimes obstructive -- without initial violence -- of the target business and annoying to members of the public who wish to patronize that business. The "danger of violence" is inherent in many -- though certainly not all -- situations of sustained trespassory picketing. One cannot predict whether or when it may occur, or its degree. It is because of these factors that, absent the availability of an equivalent remedy under the National Labor Relations Act, a state court should have the authority to protect the public and private interests by granting preliminary relief.
In the context of trespassory picketing not otherwise violative of the Act, the Board has no comparable authority. If a § 8 (a)(1) charge is filed, nothing is likely to happen "in a timely fashion." The Board cannot issue, or obtain from the federal courts, a restraining order directed at the picketing. And it may take weeks for the General Counsel to decide whether to issue a complaint. Meanwhile, the "no-man's land" prevents all recourse to the courts, and is an open invitation to self-help. I am unwilling to believe that Congress intended, by its silence in the Act, to create a situation where there is no forum to which the parties may turn for orderly interim relief in the face of a potentially explosive situation.*fn**
[ 436 U.S. Page 214]
I do not minimize the possibility that the Board may find that trespassory activity under certain circumstances is necessary to facilitate the exercise of § 7 rights by employees of the target employer. See NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956); Central Hardware Co. v. NLRB, 407 U.S. 539 (1972). The Union's conduct in this case, however, involved a publicity campaign maintained by nonemployees and directed at the general public. Such "area standards" trespassory picketing is certainly not at the core of the Act's protective ambit. In any event, it is open to the Board upon the issuance of a complaint to seek temporary relief under § 10 (j) of the Act, 29 U. S. C. § 160 (j), against the employer's interference with § 7 rights. Cf. Capital Service, Inc. v. NLRB, 347 U.S. 501 (1954). Moreover, it is not an unreasonable assumption that state courts will be mindful of the determination of an expert federal agency that there is probable cause to believe that conduct restrained by state process is protected under the Act. But I find no warrant in the Act to compel the employer to endure the creation, especially by nonemployees, of a temporary easement on his property pending the outcome of the General Counsel's action on a charge.
In sum, I do not agree with MR. JUSTICE BLACKMUN that "the logical corollary of the Court's reasoning" in its opinion today is that state-court jurisdiction is pre-empted forthwith upon the filing of a charge by the union. I would not join the Court's opinion if I thought it fairly could be read to that effect.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting.
The Court concedes that both the objective and the location of the Union's peaceful, nonobstructive picketing of
[ 436 U.S. Page 215]
Sears' store may have been protected under the National Labor Relations Act.*fn1 Therefore, despite the Court's transparent effort to disguise it, faithful application of the principles of labor law pre-emption established in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959),*fn2 would compel the conclusion that the California Superior Court was powerless to enjoin the Union from picketing on Sears' property: that the trespass was arguably protected is determinative of the state court's lack of jurisdiction, whether or not pre-emption limits an employer's remedies. See Longshoremen v. Ariadne Shipping Co., 397 U.S. 195, 200-201 (1970); Garmon, supra; Meat Cutters v. Fairlawn Meats, Inc., 353 U.S. 20 (1957); Guss v. Utah Labor Relations Bd., 353 U.S. 1 (1957).*fn3
By holding that the arguably protected character of union activity will no longer be sufficient to pre-empt state-court jurisdiction, the Court creates an exception of indeterminate dimensions to a principle of labor law pre-emption that has been followed for at least two decades. Now, when the employer
[ 436 U.S. Page 216]
lacks a "reasonable opportunity" to have the Board consider whether the challenged aspect of the employee conduct is protected and when employees having that opportunity have not invoked the Board's jurisdiction, a state court will have jurisdiction to enjoin arguably protected activity if the "risk of an erroneous . . . adjudication [by it does not outweigh] the anomalous consequence [of denying a remedy to the employer]." Ante, at 206. In making this rather amorphous determination, the lower courts apparently are to consider the strength of the argument that § 7 in fact protects the arguably protected activity, their own assessments of their ability correctly to determine the underlying labor law issue, and the strength of the state interest in affording the employer an opportunity to have a state court restrain the arguably protected conduct.
This drastic abridgment of established principles is unjustified and unjustifiable. The Garmon test, itself fashioned after some 15 years of judicial experience with jurisdictional conflicts that threatened national labor policy, see Motor Coach Employees v. Lockridge, 403 U.S. 274, 290-291 (1971), has provided stability and predictability to a particularly complex area of the law for nearly 20 years. Thus, the most elementary notions of stare decisis dictate that the test be reconsidered only upon a compelling showing, based on actual experience, that the test disserves important interests. Emphatically, that showing has not been and cannot be made. Rather, the Garmon test has proved to embody an entirely acceptable, and probably the best possible, accommodation of the competing state-federal interests. That an employer's remedies in consequence may be limited, while anomalous to the Court, produces no positive social harm; on the contrary, the limitation on employer remedies is fully justified both by the ease of application of the test by thousands of state and federal judges and by its effect of averting the danger that state courts may interfere with national labor policy. In
[ 436 U.S. Page 217]
sharp contrast, today's decision creates the certain prospect of state-court interference that may seriously erode § 7's protections of labor activities. Indeed, the most serious objection to the decision today is not that it is contrary to the teachings of stare decisis but rather that the Court's attempt to create a narrow exception to the principles of Garmon promises to be applied by the lower courts so as to disserve the interests protected by the national labor laws.
It is appropriate to recall the considerations that have shaped the development of the doctrine of labor law pre-emption. The National Labor Relations Act (Act), of course, changed the substantive law of labor relations. Prior to its enactment many courts treated concerted labor activities of employees as tortious conspiracies or restraints of trade to be enjoined unless the activities related to a specific benefit sought by the employees from their employer; activity directed at strengthening the union was, for these courts, impermissible. See F. Frankfurter & N. Greene, The Labor Injunction 26-29 (1930) (hereafter Frankfurter & Greene). While some courts regarded peaceful picketing as permissible if intended to attain lawful objectives, others regarded picketing as always enjoinable. Id., at 30-46. Section 7 abrogated these state laws. It declares that "concerted activities for the purpose of collective bargaining or other mutual aid or protection," including specific types and forms of picketing, are protected from interference from any source. Section 7 further provides that employers no longer have an absolute right to prohibit concerted activities occurring on their properties; unwilling employers frequently are required to suffer the presence of organizational activities on their premises. See NLRB v. Magnavox Co., 415 U.S. 322 (1974); NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956); Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
[ 436 U.S. Page 218]
But the Act did more than displace certain state laws. Section 8 (a) of the Act declares that it is an unfair labor practice for an employer to interfere with employee exercise of § 7 rights, and § 8 (b) of the Act provides that certain forms of employee activity, including several types of picketing, are unfair labor practices. Congress created the National Labor Relations Board to administer these provisions and prescribed a detailed procedure for the imposition of restraint on any conduct that is violative of the Act: charge and complaint, notice and hearing, and an order pending judicial review.
The animating force behind the doctrine of labor law pre-emption has been the recognition that nothing could more fully serve to defeat the purposes of the Act than to permit state and federal courts, without any limitation, to exercise jurisdiction over activities that are subject to regulation by the National Labor Relations Board. See Motor Coach Employees v. Lockridge, supra, at 286. Congress created the centralized expert agency to administer the Act because of its conviction -- generated by the historic abuses of the labor injunction, see Frankfurter & Greene -- that the judicial attitudes, court procedures, and traditional judicial remedies, state and federal, were as likely to produce adjudications incompatible with national labor policy as were different rules of substantive law. See Garner v. Teamsters, 346 U.S. 485, 490-491 (1953). Although Congress could not be understood as having displaced "all local regulation that touches or concerns in any way the complex interrelationships between employers, employees, and unions," Motor Coach Employees v. Lockridge, supra, at 289, the legislative scheme clearly embodies an implicit prohibition of those state- and federal-court adjudications that might significantly interfere with those interests that are a central concern to national labor policy.
The Act's treatment of picketing illustrates the nature of the generic problem, and at the same time highlights the issue in this case. While this Court has never held that the prescription
[ 436 U.S. Page 219]
of detailed procedures for the restraint of specific types of picketing and the provision that other types of picketing are protected implies that picketing is to be free from all restraint under state law, see, e. g., Automobile Workers v. Russell, 356 U.S. 634 (1958) (state courts may restrain violent conduct on picket lines), it by the same token necessarily is true that to permit local adjudications, without limitation, of the legality of picketing would threaten intolerable interference with the interests protected by the Act. As the Court recognizes, the nature of the threatened interference differs depending on whether the picketing implicates the Act's prohibitions or its protections. See ante, at 190. As to arguably prohibited picketing, there is a risk that the state court might misinterpret or misapply the federal prohibition and restrain conduct that Congress may have intended to be free from governmental restraint.*fn4 But even when state courts can be depended upon accurately to determine whether conduct is in fact prohibited, local adjudication may disrupt the congressional scheme by resulting in different forms of relief than would adjudication by the NLRB. By providing that an expert, centralized agency would administer the Act, Congress quite plainly evidenced an intention that, ordinarily at least, this expert agency should, on the basis of its experience with labor matters, determine the remedial implications of violations of the Act. If state courts were permitted to administer all the Act's prohibitions, the divergences in relief would add up to significant departures from federal policy. These considerations led the Court to fashion the rule, announced in Garmon, 359 U.S., at 245, that
[ 436 U.S. Page 220]
state courts have no jurisdiction over "arguably prohibited" conduct.
This aspect of Garmon has never operated as a flat prohibition.*fn5 There are circumstances in which state courts can be depended upon accurately to determine whether the underlying conduct is prohibited and in which Congress cannot be assumed to have intended to oust state-court jurisdiction. Illustrative are decisions holding that States may regulate mass picketing, obstructive picketing, or picketing that threatens or results in violence. See Automobile Workers v. Russell, supra; Automobile Workers v. Wisconsin Employment Relations Bd., 351 U.S. 266 (1956); Construction Workers v. Laburnum Constr. Corp., 347 U.S. 656 (1954); Electrical Workers v. Wisconsin Employment Relations Bd., 315 U.S. 740, 749 (1942). Because violent tortious conduct on a picket line is prohibited by § 8 (b) and because state courts can reliably determine whether such conduct has occurred without considering the merits of the underlying labor dispute, allowing local adjudications of these tort actions could neither fetter the exercise of rights protected by the Act nor otherwise interfere with the effective administration of the federal scheme. And the possible inconsistency of remedy is not alone a sufficient reason for pre-empting state-court jurisdiction.
[ 436 U.S. Page 221]
In view of the historic state interest in "such traditionally local matters as public safety and order," Electrical Workers v. Wisconsin Employment Relations Bd., supra, at 749, the Act could not, in the absence of a clear statement to the contrary, be construed as precluding the imposition of different, even harsher, state remedies in such cases. See Automobile Workers v. Russell, supra, at 641-642. Indeed, in view of the delay attendant upon resort to the Board, it could well produce positive harm to prohibit state jurisdiction in these circumstances. Our decisions leave no doubt that exceptions to the Garmon principle are to be recognized only in comparable circumstances. See Farmer v. Carpenters, 430 U.S. 290, 297-301 (1977); Vaca v. Sipes, 386 U.S. 171 (1967); Linn v. Plant Guard Workers, 383 U.S. 53 (1966).
When, on the other hand, the underlying conduct may be protected by the Act, the risk of interference with the federal scheme is of a different character. The danger of permitting local adjudications is not that timing or form of relief might be different from what the Board would administer, but rather that the local court might restrain conduct that is in fact protected by the Act. This might result not merely from attitudinal differences but even more from unfair procedures or lack of expertise in labor relations matters. The present case illustrates both the nature and magnitude of the danger. Because the location of employee picketing is often determinative of the meaningfulness of the employees' ability to engage in effective communication with their intended audience, employees often have the right to engage in picketing at particular locations, including the private property of another. See Hudgens v. NLRB, 424 U.S. 507 (1976); Scott Hudgens, 230 N. L. R. B. 414, 95 LRRM 1351 (1977); cf. NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). The California Superior Court here entered an order, ex parte, broad enough to prohibit all effective picketing of Sears' store for a period of 35 days. See opinion of my Brother BLACKMUN, ante, at 212.
[ 436 U.S. Page 222]
Since labor disputes are usually short lived, see ibid., this possibly erroneous order may well have irreparably altered the balance of the competing economic forces by prohibiting the Union's use of a permissible economic weapon at a crucial time. Obviously it is not lightly to be inferred that a Congress that provided elaborate procedures for restraint of prohibited picketing and that failed to provide an employer with a remedy against otherwise unprotected picketing could have contemplated that local tribunals with histories of insensitivity to the organizational interests of employees be permitted effectively to enjoin protected picketing.
In recognition of this fact, this Court's efforts in the area of labor law pre-emption have been largely directed to developing durable principles to ensure that local tribunals not be in a position to restrain protected conduct. Because the Court today appears to have forgotten some of the lessons of history, it is appropriate to summarize this Court's efforts. The first approach to be tried -- and abandoned -- was for this Court to proceed on a case-by-case basis and determine whether each particular final state-court ruling "does, or might reasonably be thought to, conflict in some relevant manner with federal labor policy," Motor Coach Employees v. Lockridge, 403 U.S., at 289-291; see Automobile Workers v. Wisconsin Employment Relations Bd., 336 U.S. 245 (1949). Not surprisingly, such an effort proved institutionally impossible. Because of the infinite combinations of events that implicate the central protections of the Act, this Court could not, without largely abdicating its other responsibilities, hope to determine on an ad hoc, generic-situation-by-generic-situation basis whether applications of state laws threatened national labor policy. In any case, such an approach necessarily disserved national labor policy because decision by this Court came too late to repair the damage that an erroneous decision would do to the congressionally established balance of power and was no substitute for decision in the first instance by the Board. The
[ 436 U.S. Page 223]
Court soon concluded that protecting national labor policy from disruption or defeat by conflicting local adjudications demanded broad principles of labor law pre-emption, easily administered by state and federal courts throughout the Nation, that would minimize, if not eliminate entirely, the possibility of decisions of local tribunals that irreparably injure interests protected by § 7. The only rule*fn6 satisfying these dual requirements was Garmon 's flat prohibition: "When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the . . . Board." 359 U.S., at 245.
While there is some unavoidable uncertainty concerning the arguably prohibited prong of Garmon, I emphasize that it has heretofore been absolutely clear that there is no state power to deal with conduct that is a central concern of the Act*fn7 and arguably protected by it, see Longshoremen v. Ariadne Shipping Co., 397 U.S. 195 (1970); Garmon, supra; Meat Cutters v. Fairlawn Meats, Inc., 353 U.S. 20 (1957); Guss v. Utah Labor Relations Bd., 353 U.S. 1 (1957). As the Court itself recognizes, see ante, at 194-197 and 204, none of the Garmon exceptions have ever been or could ever be applied to local attempts to restrain such conduct. But the Garmon approach to "arguably protected" activity does not "[sweep] away state-court jurisdiction over conduct traditionally subject to
[ 436 U.S. Page 224]
state regulation without careful consideration of the relative impact of such a jurisdictional bar on the various interests affected." Ante, at 188. Quite the contrary, such careful consideration is subsumed by the determination whether the underlying conduct may be protected by § 7. By enacting § 7, Congress necessarily intended to pre-empt certain state laws: e. g., those prohibiting concerted activities as conspiracies or unlawful restraints of trade. In any instance in which it can seriously be maintained that the congressionally established scheme protects the employee activity, the assessment of the relative weight of the competing state and federal interests has to be regarded as having been made by Congress. By drafting the statute so as to permit a Board determination that the underlying conduct is in fact within the ambit of § 7's protections, Congress necessarily indicated its view that the historic state interest in regulating the conduct, however defined, may have to yield to the attainment of other objectives and that the state interest thus must be regarded as less than compelling. And, of course, there is necessarily a possibility that to permit state-court jurisdiction over arguably protected conduct could fetter the exercise of rights protected by the Act and otherwise interfere with the congressional scheme. A local tribunal could recognize an activity as arguably protected, yet, given its attitude toward organized labor, lack of expertise in labor matters, and insensitive procedures, misapply or misconceive the Board's decisional criteria and restrain conduct that is within the ambit of § 7.
The present case illustrates both the necessity of this flat rule and the danger of even the slightest deviation from it. The present case, of course, is a classic one for pre-emption. The question submitted to the state court was whether the Union had a protected right to locate peaceful nonobstructive pickets on the privately owned walkway adjacent to Sears'
[ 436 U.S. Page 225]
retail store or on the privately owned parking lot a few feet away.
That the trespass was arguably protected could scarcely be clearer. NLRB v. Babcock & Wilcox Co., 351 U.S., at 112, indicates that trespassory § 7 activity is protected when "reasonable efforts . . . through other available channels" will not enable the union to reach its intended audience. This standard, which was developed in the context of a rather different factual situation, is but an application of more general principles. "[The] basic objective under the Act [is the] accommodation of § 7 rights and private property rights 'with as little destruction of one as is consistent with the maintenance of the other.' The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context." Hudgens v. NLRB, 424 U.S., at 522, quoting NLRB v. Babcock & Wilcox Co., supra, at 112; see Scott Hudgens, 230 N. L. R. B., at 417, 95 LRRM, at 1354.
Here, it can seriously be contended that the locus of the accommodation should be on the side of permitting the trespass. The § 7 interest is strong: The object of the picketing was arguably protected on one of two theories -- as "area standards"*fn8 or as "recognitional"*fn9 picketing -- and the record suggests that the relocation of the picketing to the nearest public area -- a public sidewalk 150 to 200 feet away -- may have so
[ 436 U.S. Page 226]
diluted the picketing's impact as to make it virtually meaningless.*fn10 The private property interest, in contrast, was exceedingly weak. The picketing was confined to a portion of Sears' property which was open to the public and on which Sears had permitted solicitations by other groups.*fn11 Thus, while Sears to be sure owned the property, it resembled public property in many respects. Indeed, while Sears' legal position would have been quite different if the lot and walkways had been owned by the city of Chula Vista, it is doubtful that Sears would have been any less angered or upset by the picketing if the property had in fact been public.
But the Court refuses to follow the simple analysis that has been sanctioned by the decisions of the last 20 years. Its reasons for discarding prior teachings, apparently, is a belief that faithful application of Garmon to the generic situation presented by this case causes positive social harm. I disagree.
It bears emphasizing that Garmon only partially pre-empts an employer's remedies against unlawful trespassory picketing. A state court may, of course, enjoin any picketing that is clearly unprotected by the Act: e. g., peaceful, nonobstructive picketing occurring within a retail store. See Brief for Respondent 30 n. 14, citing NLRB v. Fansteel Corp., 306 U.S. 240 (1939); Marshall Field & Co. v. NLRB, 200 F.2d 375 (CA7 1953); Brief for NLRB as Amicus Curiae 15 n. 9. And, as already indicated, state courts have jurisdiction over picketing
[ 436 U.S. Page 227]
that is obstructive, or involves large groups of persons, or otherwise entails a serious threat of violence. Automobile Workers v. Russell; Construction Workers v. Laburnum Constr. Corp.; Automobile Workers v. Wisconsin Employment Relations Bd.; Electrical Workers v. Wisconsin Employment Relations Bd. These decisions constitute an almost dispositive answer to my Brother POWELL's suggestion that state trespass laws should be allowed full play, see ante, at 213: most of the factual situations that concern him fall within a recognized Garmon exception. Finally, an employer may file an unfair labor practice charge under § 8 (b) and obtain a "cease and desist" order from the Board where the picketing has an objective prohibited by § 8 (b).
Thus, pre-emption of state-court jurisdiction to deal with trespassory picketing has been largely, if not entirely, confined to situations such as presented in this case, i. e., in which the interest of the employer in preventing the picketing is weak, the § 7 interest in picketing on the employer's property strong, and the picketing peaceful and nonobstructive. In this circumstance, I think the denial to the employer of a remedy is an entirely acceptable social cost for the benefits of a pre-emption rule that avoids the danger of state-court interference with national labor policy. The Court's arguments to the contrary are singularly unpersuasive. Because an employer's remedies are only pre-empted in the narrow circumstances of a case such as the present one, any suggestion that the faithful application of Garmon creates a "no-man's land" which results in a substantial risk of violence, see opinion of my Brother BLACKMUN, ante, at 208; opinion of my Brother POWELL, ante, at 213; cf. opinion of the Court, ante, at 202, can be dismissed as the most unfounded speculation. An employer like Sears may be angered or outraged by the presence of peaceful, nonobstructive picketing close to its retail store. But the Act requires the employer's toleration of peaceful picketing when § 7 affords the union the right to engage in this form of
[ 436 U.S. Page 228]
economic pressure. There is simply no basis whatsoever for a conclusion that the risk of violence is any greater when an employer is told by a state court that Garmon bars his state trespass action than when he is told either that § 7 protects picketing on a public area immediately adjacent to his business, cf. Longshoremen v. Ariadne Shipping Co., or that § 7 in fact privileges the entry onto his property. Cf. Scott Hudgens.
In apparent recognition of this indisputable fact, the Court places no great reliance on the likelihood of violence. But the only other reason advanced for a conclusion that Garmon produces socially intolerable results is that it is "anomalous" to deny an employer a trespass remedy. Since the Act extensively regulates the conditions under which an employer's proprietary rights must yield to the exercise of § 7 rights, I am at a loss as to why the anomaly here is any greater than that which results from the pre-emption of state remedies against tortious conspiracies, compare § 7 of the Act with Frankfurter & Greene 26-39, or from the pre-emption of state remedies against nonmalicious libels. See Linn v. Plant Guard Workers, 383 U.S. 53 (1966).
That this Court's departure from Garmon creates a great risk that protected picketing will be enjoined is amply illustrated by the facts of this case and by the task that was assigned to the California Superior Court. To decide whether the location of the Union's picketing rendered it unlawful, the state court here had to address a host of exceedingly complex labor law questions, which implicated nearly every aspect of the Union's labor dispute with Sears and which were uniquely within the province of the Board. Because it had to assess the "relative strength of the § 7 right," see Hudgens v. NLRB, 424 U.S., at 522, its first task necessarily was to determine the nature of the Union's picketing. This picketing could have
[ 436 U.S. Page 229]
been characterized in one of three ways: as protected area-standards picketing, see opinion of the Court, ante, at 186-187; as prohibited picketing to compel a reassignment of work, see ante, at 185-186, and n. 9; or as recognitional picketing that is protected at the outset but prohibited if no petition for a representative election is filed within a reasonable time, not to exceed 30 days. See supra, at 225 n. 9; ante, at 186, and n. 10. Notably, if the state court concluded that the picketing was prohibited by § 8 (b)(4) -- or unprotected by § 7 on any other theory -- that determination would have been conclusive against respondent: Whether or not the state court agreed with the Union's contention that effective communication required that picketing be located on Sears' premises, the court would enjoin the trespassory picketing on the ground that no protected § 7 interest was involved. Obviously, since even the Court admits that the characterization of the picketing "[entails] relatively complex factual and legal determinations," see ante, at 198, there is a substantial danger that the state court, lacking the Board's expertise and specialized sensitivity to labor relations matters, would err at the outset and effectively deny respondent the right to engage in any effective § 7 communication.*fn12
But even if the state court correctly assesses the § 7 interest, there are a host of other pitfalls. A myriad of factors are or
[ 436 U.S. Page 230]
could be relevant to determining whether § 7 protected the trespass: e. g., whether and to what extent relocating the picketing on the nearest public property 150 feet away would have diluted its impact; whether the picketing was characterized as recognitional or area standards; whether or the extent to which Sears had opened the property up to the public or permitted similar solicitation on it; whether it mattered that the pickets did not work for Sears, etc. And if relevant, each of these factors would suggest a number of subsidiary inquiries.
It simply cannot be seriously contended that the thousands of judges, state and federal, throughout the United States can be counted upon accurately to identify the relevant considerations and give each the proper weight in accommodating the respective rights. Indeed, the actions of the California courts illustrate the danger. Not only was the ex parte order of the California Superior Court entered under conditions precluding careful consideration of all relevant considerations, even the Court of Appeal, presumably able to devote more time and deliberation to isolate the correct decisional criteria, failed properly to appreciate the significance of a criterion critical to the application of national law: that the distance of the picketing from a store entrance is largely determinative of its effectiveness. Cf. Scott Hudgens, 230 N. L. R. B., at 417, 95 LRRM, at 1354 ("a message announced . . . by picket sign . . . a [substantial] distance from the focal point would be too greatly diluted to be meaningful"). Nothing better demonstrates the wisdom of the heretofore settled rule that " the primary responsibility for making [the] accommodation [between § 7 rights and private property rights] must rest with the Board in the first instance." Hudgens v. NLRB, supra, at 522.
The Court does not deny that its decision may well result in state-court decisions erroneously prohibiting or curtailing conduct in fact protected by § 7. But it identifies two considerations
[ 436 U.S. Page 231]
that persuade it that the risk of interference is minimal and that, in any case, the risk does not outweigh the anomalous consequence of denying the employer a remedy.
The first is its belief that the generic type of activity -- which the Court characterizes as trespassory organizational activity by nonemployees -- is more likely to be unprotected than protected. Ante, at 205-206. In so concluding, the Court relies on NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), for the proposition that there is a strong presumption against permitting trespasses by nonemployees. But the Court overlooks a critical distinction between Babcock and the case at bar. Babcock involved a trespass on industrial property which the employer had fenced off from the public at large, and it is a grave error to treat Babcock as having substantial implications for the generic situation presented by this case. To permit trespassory § 7 activities in the Babcock fact pattern entails far greater interference with an employer's business than does allowing peaceful nonobstructive picketing on a parking lot which is open to the public and which has been used for other types of solicitation. As my Brother BLACKMUN's concurring opinion notes, this Court's short-lived holding that picketing at shopping centers is protected by the Fourteenth Amendment, see Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968), overruled in Hudgens v. NLRB, supra, has resulted in a situation where neither this Court nor the Board has considered, in any comprehensive fashion, the quite different question of the conditions under which union representatives may enter privately owned areas of shopping centers to engage in protected activities such as peaceful picketing. But the Court's own opinion in Hudgens v. NLRB, supra, and the Board's decision in Scott Hudgens, supra,*fn13 both suggest that
[ 436 U.S. Page 232]
trespasses in such circumstances will often be protected. Quite apart from the fact the Court has no basis for blithely assuming that all private property is fungible, that this Court would fail to appreciate so possibly vital a distinction in assessing the strength of a § 7 claim illustrates the danger of permitting lower courts, which lack even this Court's exposure to labor law, to rule on the question whether trespassory picketing by nonemployees is protected.
The Court's second reason is more problematic still. It urges that the risk that local adjudications will interfere with protected § 7 activity is "minimized by the fact that in the cases in which the argument in favor of protection is the strongest, the union is likely to invoke the Board's jurisdiction and thereby avoid the state forum." Ante, at 206. That, with all respect, betrays ignorance of the conduct of adversaries in the real world of labor disputes. Whether a union will seek the protection of a Board order will depend upon whether that tactic will best serve its self-interest, and that determination will depend in turn on whether the employer's request inhibits or interferes with the union's ability to engage in protected conduct. A request that a trespass cease may or may not so threaten the union as to lead it to go to the trouble and expense of attempting to invoke the Board's jurisdiction, and the strength of the argument that the conduct is protected will frequently be a factor of no relevance. For example, if the union perceives the employer's request as a hollow threat or believes that the employer's legal position in any case has no merit, the union will have no reason to turn to the Board.
It might, on the other hand, be the case that the union
[ 436 U.S. Page 233]
would have more of an incentive to file a § 8 (a)(1) charge if it believed that resort to the Board were necessary to protect itself against adjudications by hostile state tribunals. Of course, even then, the union may not believe that invocation of the Board's jurisdiction is worth the trouble and expense in those instances in which it believes its own legal position unassailable. But there is no point in conjecturing on this score. The Court assiduously avoids holding that resort to the Board will oust a state court's jurisdiction*fn14 and is divided on this question. Compare opinion of my Brother BLACKMUN, ante, at 208-210, with opinion of my Brother POWELL, ante, p. 212. The Court cannot have it both ways: Unless and until the Court decides that the filing of a charge pre-empts adjudications by local tribunals, speculation as to the conditions under which there would or would not be a failure to file is an idle exercise.*fn15
[ 436 U.S. Page 234]
But what is far more disturbing than the specific holding in this case is its implications for different generic situations. Whatever the shortcomings of Garmon, none can deny the necessity for a rule in this complex area that is capable of uniform application by the lower courts. The Court's new exception to Garmon cannot be expected to be correctly applied by those courts and thus most inevitably will threaten erosion of the goal of uniform administration of the national labor laws. Even though the Court apparently intends to create only a very narrow exception to Garmon -- largely if not entirely limited to situations in which the employer first requested the nonemployees engaged in area-standards picketing on the employer's property to remove the pickets from the employer's land and the union did not respond by filing § 8 (a)(1) unfair labor practice charges -- the approach the Court today adopts cannot be so easily cabined and thus threatens intolerable disruption of national labor policy.
Because § 8 (b) only affords an employer a remedy against certain types of unprotected employee activity, there necessarily will be a myriad of circumstances in which an employer will be confronted with possibly unprotected employee or union conduct, and yet be unable directly to invoke the Board's processes to receive a determination of the protected
[ 436 U.S. Page 235]
character of the conduct. Today's decision certainly opens the door to a conclusion by state and federal courts that the Court's new exception applies in any situation where the employer has requested that the labor organization cease what the employer claims is unprotected conduct and the union has not responded by filing a § 8 (a)(1) charge. In that circumstance, today's decision sanctions a three-step process by the state or federal court.
First, the court must inquire whether the employer had a "reasonable opportunity" to force a Board determination. What constitutes a "reasonable opportunity"? I have to assume from today's decision that the employer can never be deemed to have an acceptable opportunity when nonemployees are engaged in the arguably protected activity. But what if employees are involved? Will the fact that the employer can provoke the filing of an unfair labor practice charge by disciplining the employee always constitute an acceptable alternative? Perhaps so, but the Court provides no guidance that can help the local judges. Some may believe that the fact that any discipline will enhance the seriousness of the unfair labor practice renders that course unacceptable. Similarly, what of the instances in which employer discipline might not, under the circumstances, provoke the filing of a charge: e. g., if an economic strike were in progress?
Second, if the lower court concludes that the employer did not have an acceptable means of placing the protection issue before the Board, it must then proceed to inquire whether, in light of its assessment of the strength of the argument that § 7 might protect the generic type of conduct involved, there is a substantial likelihood that its adjudication will be incompatible with national labor policy. This is a particularly onerous task to assign to judges having no special expertise or specialized sensitivity in the application of the federal labor laws, and it is not clairvoyant to predict that many local tribunals will misconceive the relevant criteria and erroneously
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conclude that they are capable of correctly applying the labor laws. With all respect, the Court's opinion proves my point. As I have already observed, in concluding that peaceful picketing upon Sears' walkway was more likely to be unprotected than protected, the Court makes an entirely unfounded assumption concerning the approach the Board is likely to apply to the organizational activities of nonemployees at shopping centers. Since the great majority of state and federal judges around the Nation rarely, if ever, have this Court's exposure to the federal labor laws, local tribunals surely will commit far more grievous errors in assessing the likelihood that its adjudication will subvert national labor policy. But the final step in the Court's new pre-emption inquiry is the most troublesome: The range of circumstances in which local tribunals might conclude that the anomaly of denying an employer a remedy outweighs the risk of erroneous determinations by the state courts is limitless. Many erroneous determinations of non-pre-emption are certain to occur, and the local adjudications of the protection issues will inevitably often be inconsistent and contrary to national policy.
This prospect should give the Court more concern than its opinion reflects. It is no answer that errors remain correctible while this Court sits. The burden that will be thrown upon this Court finally to decide, on an ad hoc, generic-situation-by-generic-situation basis, whether the employer had a "reasonable opportunity" to obtain a Board determination and, if not, whether the risk of interference outweighs the anomaly of denying the employer a remedy, should give us pause. Inconsistency and error in decisions below may compel review of an inordinate number of cases, lest lower court adjudications threaten irretrievable injury to interests protected by § 7. Indeed, the experience of 30 years ago should, I would have thought, taught us the folly of such an approach. And our burden will be even greater if, as my Brother BLACKMUN suggests, ante, at 211-212, this Court must fashion a code of
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"labor law due process" to minimize the risk of erroneous state-court determinations of protection questions.
I do not doubt that this Court could, if it wished, minimize the deleterious consequences of today's unfortunate decision. But the Court cannot prevent it from introducing inconsistency and confusion that will threaten the fabric of national labor policy and from imposing new and unnecessary burdens on this Court. Adherence to Garmon would spare us and the Nation these burdens. Because the Court has not demonstrated that Garmon produces an unacceptable accommodation of the conflicting state and federal interests, I respectfully dissent.
* John W. Noble, Jr., filed a brief for the American Retail Federation as amicus curiae urging reversal.
Solicitor General McCree, John S. Irving, Carl L. Taylor, Norton J. Come, and Linda Sher filed a brief for the National Labor Relations Board as amicus curiae urging affirmance.