
    Paul C. Dooley, Doing Business as Dooley Provision Company, Respondent, v. Thomas Anton, Individually and as Secretary of Food Stores Local No. 34, Affiliated with Amalgamated Meat Cutters, Butchers and Allied Market Employees of AFL, et al., Appellants.
    Argued January 4, 1960;
    decided May 27, 1960.
    
      
      Richard Lipsitz for appellants.
    I. The New York courts may not enjoin peaceful, nonviolent picketing of the premises of an employer whose business affects interstate commerce. If the picketing involved herein was for a “ recognitions! ” purpose, the same is a violation of section 8 (subd. [b], par. [2], cl. [A]) of the National Labor Relations Act as amended (Taft-Hartley Act). (Pleasant Val. Packing Co. v. Talarico, 5 N Y 2d 40; National Labor Relations Bd. v. International Assn, of Machinists, Lodge 942, 263 F. 2d 796; National Labor Relations Bd. v. O’Keefe & Merritt Mfg. Co., 178 F. 2d 445; Labor Bd. v. Greyhound Lines, 303 U. S. 261.) II. Picketing to compel recognition is no more or less unlawful because of the existence of a contract with another union. III. In any event, under the decisions of the United States Supreme Court, the picketing involved herein is picketing which is exempted from prohibition from the State courts where it is peaceful and nonviolent. (Garner v. Teamsters Union, 346 U. S. 485; Weber v. AnheuserBusch, 348 U. S. 468; Retail Clerks Assn. v. Newberry Co., 352 U. S. 987; Guss v. Utah Labor Bd., 353 U. S. 1; Meat Cutters v. Fairlawn Meats, 353 U. S. 20; San Diego Unions v. Garmon, 353 U. S. 26, 359 U. S. 236; Hotel Employees v. Sax Enterprises, 358 U. S. 270; Goodwins, Inc., v. Hagedorn, 303 N. Y. 300.) IV. The United States Supreme Court has already held that peaceful, nonviolent picketing for recognition by a minority union violates the Taft-Hartley Act. (Teamsters Union v. Vogt, Inc., 354 U. S. 284.) V. If the picketing herein is found to be other than for the purpose of recognition, then it is protected both under State and Federal law from injunctive relief. (Wood v. O’Grady, 307 N. Y. 532; Sales Drivers Union v. Labor Bd., 229 F. 2d 514, 351 U. S. 972.)
    
      Donald D. Bentley for respondent.
    I. The activities of defendants-appellants were enjoinable under the New York law. The picketing and other activities involved here were clearly recognitional rather than organizational in character and purpose. II. Picketing and other activities designed to force recognition of a stranger union by an employer already under contract with a union representing a majority of his employees are enjoinable. (Goodwins, Inc., v. Hagedorn, 303 N. Y. 300; Wood v. O’Grady, 307 N. Y. 532; Pleasant Val. Packing Co. v. Talarico, 5 N Y 2d 40.) III. The New York State courts have jurisdiction of this matter. Pre-emption of jurisdiction from the State courts to the National Labor Relations Board is limited to violations of the National Labor Relations Act. (Garner v. Teamsters Union, 346 U. S. 485.) IV. The conduct of defendant-appellant does not constitute a violation of section 8 (subd. [b], par. [1], cl. [A]) of the National Labor Relations Act as claimed. (Metzger Co. v. Fay, 4 A D 2d 436; Colonial Super Markets v. Liss, 7 Misc 2d 746; Windsor Diner v. Dalles, 2 A D 2d 759; Trading Port v. Robilotto, 8 Misc 2d 343.) V. The Congress, by passage in the 1959 Labor Management Act of specific provisions regulating or prohibiting the type of picketing herein enjoined, has clearly affirmed that such was not the earlier Federal law. VI. The decision of this court in Pleasant Val. Packing Go. v. Talarico (5 N Y 2d 40) is not in conflict with the decisions of the United States Supreme Court. (Garner v. Teamsters Union, 346 U. S. 485; Aetna Frgt. Lines v. Clayton, 228 F. 2d 284; San Diego Unions v. Garmon, 359 U. S. 236.) VII. Plaintiff-respondent has been irreparably damaged.
   Froessel, J.

The question we are called upon to decide is

whether an injunction permanently restraining peaceful recognitional picketing by two minority unions, where the employer had recognized and contracted with a different and independent union representing a majority of his employees, may stand. It is clear that the employer’s business activities affect interstate commerce for the purpose of the jurisdiction of the National Labor Relations Act (U. S. Code, tit. 29, § 151 et seq., herein called the Act), and the lower courts necessarily assumed so in their decisions. The employer was awarded injunctive relief on the authority of our decision in Pleasant Val. Packing Co. v. Talarico (5 N Y 2d 40).

The facts in the Pleasant Valley case were substantially similar to the facts found here, except that the independent union in that case had been certified by the National Labor Relations Board (herein called the Board) as the exclusive bargaining agent of the employees. It should be noted, however, that the right of employees to bargain collectively through an exclusive bargaining representative is not conditioned upon an antecedent certification by the Board where the majority status of the union is clearly established; an employer who denies recognition to a noncertified majority union commits an unfair labor practice (Mine Workers v. Arkansas Flooring Co., 351 U. S. 62; Labor Bd. v. Mine Workers, 355 U. S. 453, 462-463; Brooks v. Labor Bd., 348 U. S. 96, 100-101; National Labor Relations Bd. v. Kobritz, 193 F. 2d 8, 14).

We held, in Pleasant Valley, that recognitional picketing by a stranger union designed to coerce an employer to commit an unlawful act—i.e., to bargain with the picketing union despite the fact that another union had been" certified as the exclusive bargaining agent of the employees—was neither protected nor prohibited activity under the Act, and hence the State courts were free to assume jurisdiction. Subsequent to the Pleasant Valley decision, however, the Supreme Court of the United States decided San Diego Unions v. Garmon (359 U. S. 236) which, in the words of Justice Hablan’s concurring opinion, ‘ ‘ will stand as a landmark in future ‘ pre-emption ’ cases in the labor field ” (p. 250).

The Garmon case involved peaceful picketing designed to coerce the employer into signing a union shop agreement, and, in reversing a judgment of the California Supreme Court awarding the employer tort damages for injuries caused by the Unions’ activities, the Supreme Court held (at pp. 245-246): “ 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 Board if the danger of state interference with national policy is to be averted. * * * Since the National Labor Relations Board has not adjudicated the status of the conduct for which the State of California seeks to give a remedy in damages, and since such activity is arguably within the compass of § 7 or § 8 of the Act, the State’s jurisdiction is displaced.”

The Garmon decision was held to be controlling in Columbia Broadcasting System v. McDonough (6 N Y 2d 962), where a union—engaged in a strike against two companies which supplied CBS with lantern slides and photographic prints •—commenced secondary picketing of CBS with the avowed purpose of compelling CBS to cease doing business with the struck suppliers. Special Term temporarily enjoined the secondary picketing on the authority of the Pleasant Valley decision, but the Appellate Division reversed (8 A D 2d 695) and held: “ Where, as here, there is an arguable question of jurisdiction, determination in the first instance must be left to the National Labor Relations Board and the State courts are not primary tribunals to adjudicate such issue. (San Diego Unions v. Garmon, 359 U. S. 236.) ” Since it was arguable whether the secondary picketing constituted an unfair labor practice under section 8 (subd. [b], par. [4], cl. [A]) of the Act (U. S. Code, tit. 29, § 158, subd. [b], par. [4], cl. [A]), we unanimously affirmed the Appellate Division (6 N Y 2d 962).

It is apparent that as a result of the Garmon decision (supra), unanimously followed in Columbia Broadcasting, the Pleasant Valley case (supra) is no longer controlling. It was certainly arguable in Pleasant Valley, where we were divided 4 to 3, whether reoognitional picketing by a stranger union, in the face of an existing Board certification of a different union, violated section 8 (subd. [b], par. [4], cl. [C]) of the Act (U. S. Code, tit. 29, § 158, subd. [b], par. [4], cl. [C]). In that case, we took the position that “ any doubt ” in a particular case “ should be resolved in favor of [State] jurisdiction ” (5 N Y 2d, at p. 47). However, the basic approach to a labor pre-emption problem announced in the Garmon case is diametrically opposed to this view. In Garmon, the Supreme Court adopted the rule that any doubt must be resolved in favor of ‘ ‘ the exclusive primary competence of the Board”, the “governing consideration” being “that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy ” (359 U. S., at pp. 245-246).

The Garmon decision had not yet been rendered at the time the lower courts decided this case, and hence they understandably asserted jurisdiction under the Pleasant Valley decision. Meanwhile, the circuit courts disagreed as to whether peaceful picketing for recognition violated section 8 (subd. [b], par. [1], cl. [A]) of the Act (U. S. Code, tit. 29, § 158, subd. [b], par. [1], cl. [A]), which makes it an unfair labor practice for a union to restrain or coerce employees in the exercise of the rights guaranteed them by section 7 (cf. National Labor Relations Bd. v. United Rubber, Cork, Linoleum & Plastic Workers, 269 F. 2d 694 [4th Cir.], with Drivers, Chauffeurs & Helpers Local v. National Labor Relations Bd. [Curtis Bros.], 274 F. 2d 551 [D. C. Cir.], cert, granted 359 U. S. 965, and National Labor Relations Bd. v. International Brotherhood of Teamsters, 272 F. 2d 85 [2d Cir.]).

While the appeal to this court was pending, the Supreme Court, in the Curtis Bros, case (Labor Bd. v. Drivers Local Union [Curtis Bros.], 362 U. S. 274), held (p. 290) “ that Congress in the Taft-Hartley Act authorized the Board to regulate peaceful ' recognitional ’ picketing only when it is employed to accomplish objectives specified in § 8 (b) (4); and that § 8 (b) (1) (A) is a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof—conduct involving more than the general pressures upon persons employed by the affected employers implicit in economic strikes.” Thus, in the words of the Garmon decision (supra, at p. 246), the Supreme Court has supplied us with a “compelling precedent” that the union activity here enjoined — under the law in effect at the time of issuance of the injunction by Special Term—was not an unfair labor practice, and hence the State courts were not pre-empted of jurisdiction on that count.

Whether it follows that peaceful recognitional picketing is protected activity within the compass of section 7 of the Act (U. S. Code, tit. 29, § 157)—the other side of the pre-emption coin—is not altogether clear from the Curtis Bros, decision (Labor Bd. v. Drivers Local Union, supra). In discussing the limitations or qualifications on the right to strike and picket referred to in section 13 of the Act (U. S. Code, tit. 29, § 163), the court made reference to the doctrine fashioned by the Board and the court “that the Board should deny reinstatement to strikers [or pickets] who engaged in strikes [or picketing] which were conducted in an unlawful manner or for an unlawful objective ” (362 U. S. 274, 281; emphasis supplied).

The statement that employees who engaged in picketing ‘ for an unlawful objective ” would not be entitled to reinstatement implies that such picketing is not protected activity within section 7. It is clear in the present case that the objective of the picketing, as found by the lower courts, was to induce the employer to commit an unfair labor practice by breaching a contract he had made with a majority independent union. In the “ sensitive area of peaceful picketing ”, however (362 U. S. 274, supra, at p. 284), it is susceptible of reasonable argument that picketing which is not proscribed by section 8 may be protected by section 7 for purposes of pre-empting the State’s injunctive processes (see Weber v. Anheuser-Busch, 348 U. S. 468, 474-475), and hence, under the Garmon doctrine, it is the Board, not the State courts, which has exclusive primary jurisdiction to resolve the issue.

In any event, a compelling reason for reversing the judgment below is that the Landrum-Griffin Amendments to the National Labor Relations Act (Labor-Management Reporting and Disclosure Act of 1959, 73 U. S. Stat. 519 et seq.), which went into effect on November 13, 1959, have effectively rendered moot the issue of State jurisdiction here involved. Paragraph (7) of subdivision (b) of section 8 of the Act, added by the new law (§ 704, subd. [c]), expressly makes recognitional picketing an unfair labor practice where the employer has lawfully recognized another labor organization, and a question concerning representation may no.t appropriately be raised under section 9 (Act, § 8, subd. [b], par. [7],'cl. [A]). “This new statutory provision seems squarely to cover the type of conduct involved here” (Memorandum of Mr. Justice Stewart in the Curtis Bros, case, 362 U. S., supra, at p. 292; see, also, 44 Minn. L. Rev. 257, 264), and in any event it is the province of the Board, not the State courts, to decide the issue in the first instance. Since it is now arguably within the compass of the Board’s jurisdiction to enjoin the picketing here involved, the permanent injunction granted below obviously cannot stand.

The judgment should be reversed, without costs to either party, and the complaint dismissed.

Van Voorhis, J. (concurring).

Invoking the pre-emption doctrine of the United States Supreme Court in labor cases, culminating in San Diego Unions v. Garmon (359 U. S. 236), appellant union asks the court to rule in its favor on the ground that it has violated the law. It has been enjoined from picketing to exert economic pressure on an employer to compel recognition of a different union from the one with which the émployer has a lawful labor contract, The lawfulness of the contract with the other union was confirmed, as we were informed by counsel for both sides upon the reargument, by an election conducted by the National Labor Relations Board at which the employees voted against appellant union and in favor of the union having the labor contract. Such illegal conduct has been held to be subject to restraint by State injunction notwithstanding that the plaintiff is engaged in interstate commerce (Pleasant Val. Packing Co. v. Talarico, 5 N Y 2d 40; Goodwins, Inc., v. Hagedorn, 303 N. Y. 300). Regardless of whether those decisions were overruled in Columbia Broadcasting System v. McDonough (6 N Y 2d 962), as a result of San Diego Unions v. Garmon (supra), or whether Labor Bd. v. Drivers Local Union (Curtis Bros.) (362 U. S. 274) by implication disclaims Federal pre-emption under these circumstances, the 1959 Landrum-Griffin Amendments to the National Labor Relations Act (§ 8, subd. [b], par. [7], added by Labor-Management Reporting and Disclosure Act of 1959, 73 IT. S. Stat. 519 et seq.) specifically render recognitional picketing an unfair labor practice where the employer has lawfully recognized another labor organization. For that reason, under the Federal pre-emption doctrine, I am constrained to the conclusion that appellant union’s contention must have its way that it should be allowed to engage in this disruptive illegal activity for the very reason that the United States Congress has expressly prohibited it. Such is the effect of San Diego Unions v. Garmon (359 U. S. 236, supra).

It is not for us to reason why the States should be deprived of jurisdiction, nor whether doing so is in harmony with established theories of federalism under which States are allowed to proceed where their policies do not contravene Federal policy nor place a burden on interstate commerce.

It should be clearly pointed out, however, that regardless of whether the National Labor Relations Board assumes or declines to exercise jurisdiction to take steps to stop this illegal behavior, the States have been relieved from responsibility in this kind of ease. Appellant union evidently considers that there will be no redress for the employer’s just grievance in the Federal sphere, otherwise it would not be proclaiming the illegality of its conduct as its shield and protection.

Lest there be any assumption that the State courts are shirking responsibility, or uncertainty about the existence or dimensioixs of this “No Man’s Land” between Fedei-al and State jurisdiction into which we are forbidden to enter, I would call attention to addresses by members of the National Labor Relations Boai'd and of the New York State Labor Relations Board. (Philip Ray Rodgers, Current Problems in the Administration of the Taft-Hartley Act, 1958 Record of Proceedings of Labor Relations Law Sectioix of American Bar Assn., pp. 7-11; Joseph Di Fede, Chairman of New York State Labor Relations Board, Problems of Federal-State Jurisdiction in Labor-Management Disputes, New York University’s Eleventh Annual Conference on Labor, 1958, pp. 85-114.) Chairman Di Fede thus outlined the extent and nature of the “No Man’s Land ” from the State point of view:

“ The extent of the unregulated area cannot be determined precisely, but it is significant, in this regard, that 90 per cent of the business enterprises throughout the country employ less than 20 persons.
* * *
1 It has been estimated that 25 per cent of the non-agricultural labor forces are employed in businesses over which the national board does not assert jurisdiction (Rosenthal, ' Exclusions of Employees under the Taft-Hartley Act,’ 4 Industrial and L. R. R. 556). The 1958 estimate of the Small Business Administration is that the national board’s jurisdictional standards cover less than 3 per cent of the retail industry in the United States, less than 1 per cent of services and public utilities, and less than 50 per cent of the manufacturers.
‘ ‘ Included in the ' no-man’s land ’ are 126 local transit companies which serve 129 cities with a total population of over 50 million people and the entire hotel industry, over which the national board, with congressional approval, consistently has declined jurisdiction. In the State of New York, for instance, there are some 7,800 hotels and inns employing over 120,000 workers.
“The national board has also refused to assert jurisdiction over taxicab companies. In New York City, alone, there are hundreds of taxicab companies employing over 30,000 drivers. The entertainment and sport industry, operating thousands of nightclubs, vaudeville shows, theatres, baseball parks and clubs, hockey rinks, boxing clnbs, circus exhibitions and race tracks, employing tens of thousands of workers, is another industry over which the national board declines to assert jurisdiction because of the essentially local nature of the activities.” (pp. 91-92).

To this he added (p. 96) that The state board, in view of the decision of the Supreme Court, has been compelled to dismiss cases involving franchised automobile dealers, local newspapers, automobile glass distributors, and vending machine companies, even though these companies admittedly failed to meet the national board’s jurisdictional standards.” Concerning this Mr. Di Fede made the following observation (pp. 96-97): “ The foregoing analysis of the extent and nature of the ‘ no-man’s land ’ demonstrates that the extent of this unregulated area is indeed vast. The evils and dangers inherent in the existence of such an unregulated area need no lengthy exposition. The parties to labor disputes in this unregulated area are left without a forum for the peaceful resolution of their disputes. They are necessarily relegated to the use of economic warfare, contrary to both national and state policy. Moreover, the states, which bear the consequences of economic disruption due to strikes and the consequent reduction in production and sales, and which must exercise the obligation of policing such disputes, are left without power to protect the public interest in maintaining industrial peace.”

The problems of the increasing backlog of cases before the National Labor Relations Board, due to this pre-emption doctrine, is vividly and eloquently summarized by Mr. Rodgers (1958 Record of Proceedings of Labor Relations Law Section of American Bar Assn., sufra, p. 11): “ Of this I can assure you: there is a limit — a mental and physical limit—to what any five individuals can do. As this pyramid broadens and these cases multiply, there must inevitably come a point—and in my opinion we are even now rapidly approaching that point —when the personal efforts of five men can achieve no more.” The reasons of the National Labor Relations Board for declining to enforce the Federal law in local situations of the present type are thus made apparent. Mr. Rodgers said, concerning uniformity (pp. 10-11): “ It has at times been facetiously, and yet at the same time wistfully, said that the way for the Board to overcome the backlog is for Board members to affirm the trial examiners without comment, and to sustain the regional directors by telephone. It is true that such actions would cope with the backlog. But they would not represent the type of responsible action which the law contemplates and .the country demands. ’ ’

A further effect of the pre-emption rule is to preclude parties to disputes of this nature—whether they be employers or unions — from maintaining private suits in the courts, and to subject them exclusively to the paternalistic, administrative supervision of a board having the discretion to decide, even if the time and physique of board members could be extended, whether employers or unions should be allowed to resort to the courts through the board for the enforcement of their undoubted legal rights.

The recent amendment to subdivision (a) of section 10 to enable the National Labor Relations Board to cede jurisdiction to such States as have almost identical labor laws appears to have had little effect (Fanning, The No-Man’s Land ” and the National Labor Relations Board’s Jurisdictional Policies, 8 Catholic U. L. Rev. [Jan., 1959], pp. 1-12, at p. 10).

These factors, important as they are, can no longer stay the abolition of the powers and responsibilities of the State courts and boards in these matters as a result of the pre-emption doctrine. There should be no misunderstanding that, having been charged with these responsibilities for many years, the State courts and boards are subject to them no longer in the fields which have been described, except in case of activities that are so local in nature as not to come at all within the wide and constantly expanding area of interstate commerce. How long a federalized system can stand this theory of decision may be open to question.

Chief Judge Desmond and Judges Dye, Fuld, Burke and Foster concur with Judge Froessel ; Judge Van Voorhis concurs in a separate opinion.

Upon reargument: Judgment reversed and complaint dismissed, without costs.  