U.S. Supreme Court RAILROAD TRAINMEN v. TERMINAL CO., 394 U.S. 369 (1969) 394 U.S. 369

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Francis M. Shea, Richard T. Conway, Ralph J. Moore, Jr., and James A. Wilcox filed a brief for the National Railway Labor Conference as amicus curiae urging affirmance.

MR. JUSTICE HARLAN delivered the opinion of the Court.

This case arises out of the Nation's longest railroad labor dispute, much of the history of which is recorded in the pages of the United States and federal reports.[Footnote 1] The events most pertinent to the present litigation began on April 24, 1966, when the Florida East Coast Railway Company (FEC), having exhausted all procedures required by the Railway Labor Act[Footnote 2] for the resolution of a "major dispute,"[Footnote 3] unilaterally changed its operating employees' rates of pay, rules, and working conditions. Petitioners, who represent FEC's operating employees, responded by calling a strike and thereafter by picketing the various locations at which FEC carried on its operations, including the premises of the respondent, Jacksonville Terminal Company.[Footnote 4]

[Page 394 U.S. 369, 372]

On the complaint of respondent and two railroads other than FEC, a United States District Court issued a temporary restraining order several hours after the picketing began, and later enjoined petitioners from picketing respondent's premises except at a "reserved gate" set aside for FEC employees. The Court of Appeals for the Fifth Circuit reversed, holding that the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. 101 et seq., prevented issuance of a federal injunction. Railroad Trainmen v. Atlantic C. L. R. Co., 362 F.2d 649 (1966). We affirmed by an equally divided Court. 385 U.S. 20 (1966).

While that litigation was pending in the federal courts, respondent instituted the present action for injunctive relief in the Florida Circuit Court. Petitioners removed the action to the United States District Court, which promptly remanded to the state court. The Florida court issued a temporary injunction, substantially identical to the earlier federal order, which it made final after a full hearing. On appeal, the Florida District Court of Appeal affirmed per curiam. The Supreme Court of Florida denied certiorari and dismissed the appeal. We granted certiorari, 392 U.S. 904 (1968), to determine the extent of state power to regulate the economic combat of parties subject to the Railway Labor Act. I. Respondent, a Florida corporation, operates a passenger and freight rail terminal facility in Jacksonville, Florida, through which rail traffic passes to and from the Florida peninsula. The corporation is jointly owned and controlled by four railroad carriers, including FEC, which enjoy the common use of the terminal's facilities and services, and share equally in its operation.[Footnote 5]

[Page 394 U.S. 369, 374]

common use of the premises and facilities would, presumably, render such separations impracticable.

On May 4, 1966, petitioners began to picket almost every entrance to the terminal. The signs stated clearly that the dispute was with FEC alone, and urged "fellow railroad men" not to "cross" and not to "assist FEC."[Footnote 6] The picketing was entirely peaceful. It lasted only a few hours, until it was curtailed by a federal temporary restraining order, and thereafter by a series of federal and state injunctions.

The Florida Circuit Court found that resumption of general picketing "would result in a virtual cessation of activities . . . of the Terminal Company," and would cause serious economic damage to the entire State. Joint App. 183. The court held that the picketing constituted a secondary boycott illegal under state law; that it unjustifiably interfered with respondent's business relations; that it violated the State's restraint of trade laws, Fla. Stat. 542.01 et seq. (1965); and that it sought to force respondent to violate its duties as a carrier under the Florida Transportation Act.[Footnote 7] On

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this basis, the court enjoined petitioners from picketing the terminal except at the FEC reserved gate, and from causing or inducing respondent's employees to cease performing their duties of employment in connection with the FEC dispute. II. We consider initially petitioners' argument that the jurisdiction of the Florida court was ousted by the primary and exclusive jurisdiction of the National Labor Relations Board. Cf. San Diego Unions v. Garmon, 359 U.S. 236 (1959).

It is not disputed that petitioners, the respondent and its employees, and the railroads (including FEC) that use the terminal as well as their employees, are subject to the Railway Labor Act. See 1 First, Fourth, 44 Stat. 577, as amended, 45 U.S.C. 151 First, Fourth; Interstate Commerce Act, as amended, 1 (3), 24 Stat. 379, 49 U.S.C. 1 (3). The petitioner organizations "are composed predominantly and overwhelmingly of employees . . . subject to the Railway Labor Act," Joint App. 93; all pickets were members of local lodges composed solely of such employees, and were employees of the FEC. Id., at 94. However, the organizations' national membership includes a small percentage of employees who are not subject to the Railway Labor Act,[Footnote 8] and who may be subject to the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C. 151 et seq. Petitioners contend that this is sufficient to bring the present dispute arguably within the NLRA, and they assert that until the National Labor Relations Board decides otherwise, no court may

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assume jurisdiction over the controversy. Cf. Marine Engineers v. Interlake Steamship Co., 370 U.S. 173 (1962).[Footnote 9]

This argument proves too much. For on petitioners' theory, it is hard to conceive of any railway labor dispute that is not "arguably" subject to the NLRB's primary jurisdiction. A serious question would be presented whether the parties to such a dispute were ever obligated to pursue the Railway Labor Act's procedures, and whether the Mediation and Adjustment Boards could ever concern themselves with a dispute - until the matter had first been submitted to the NLRB and that agency had determined that it lacked jurisdiction.

This was not meant to be. The NLRA came into being against the background of pre-existing comprehensive federal legislation regulating railway labor disputes. Sections 2 (2) and (3) of the NLRA, 29 U.S.C. 152 (2), (3), expressly exempt from the Act's coverage employees and employers subject to the Railway Labor Act.[Footnote 10] And when the traditional railway labor organizations

[Page 394 U.S. 369, 379]

line of decisions. Railway Clerks v. Florida E. C. R. Co., 384 U.S. 238, 244 (1966); Locomotive Engineers v. Baltimore & O. R. Co., (1963); Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U.S. 330 (1960); Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711, 725 (1945).

Both before and after enactment of the Railway Labor Act,[Footnote 11] as well as during congressional debates on the bill itself,[Footnote 12] proposals were advanced for replacing this final resort to economic warfare with compulsory arbitration and antistrike laws. But although Congress and the Executive have taken emergency ad hoc measures to compel the resolution of particular controversies,[Footnote 13] no such general provisions have ever been enacted. And for the settlement of major disputes,

[Page 394 U.S. 369, 380]

and pressures for mobilizing public opinion are applied. The parties are required to submit to the successive procedures designed to induce agreement. 5 First (b). But compulsions go only to insure that those procedures are exhausted before resort can be had to self-help. No authority is empowered to decide the dispute and no such power is intended, unless the parties themselves agree to arbitration." Elgin, J. & E. R. Co. v. Burley, supra, at 725. IV. We have not previously had occasion to consider whether the Railway Labor Act circumscribes state power to regulate economic warfare between disputants subject to the Act. Read narrowly, the decisions cited above, at 379, do no more than negate the "implication" of an independent federal remedy against self-help,[Footnote 14] and do not foreclose a State from bringing its own sanctions to bear on such conduct. On this theory, once the Act's required processes have been exhausted, a State would be free to impose whatever restrictions it wished on the parties' use of self-help.

The Act is silent on this question, as is its legislative history.[Footnote 15] We think it clear, however, that the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act's processes. The disputants' positions in the course of negotiation and mediation, and their willingness to submit to binding arbitration or abide by the recommendations

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of a presidential commission, would be seriously affected by the knowledge that after these procedures were exhausted a State would, say, prohibit the employees from striking or prevent the railroad from taking measures necessary to continue operating in the face of a strike. Such interference would be compounded if the disputants were - as they frequently would be - subjected to various and divergent state laws. Railway (and airline[Footnote 16]) labor disputes typically present problems of national magnitude. A strike in one State often paralyzes transportation in an entire section of the United States, and transportation labor disputes frequently result in simultaneous work stoppages in many States.

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It follows that even though the Florida courts may have jurisdiction over this litigation, the application of state law is limited by paramount federal policies of nationwide import. V. We are presented, then, with the problem of delineating the area of labor combat protected[Footnote 17] against infringement by the States. The text and legislative history of the Railway Labor Act, and the decisional law thereunder, provide little guidance. To refer to the "general" labor law, as it existed around the time the Act came into being, would be ahistorical. Like forays into economic due process, see Ferguson v. Skrupa, (1963); Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955), this judge-made law of the late 19th and early 20th centuries was based on self-mesmerized views of economic and social theory, see F. Frankfurter & N. Green, The Labor Injunction 1-46, 199-205 (1930); A. Cox & D. Bok, Cases on Labor Law 101-105 (5th ed. 1962), and on statutory misconstruction, see United States v. Hutcheson, (1941). We need not hold that the Norris-LaGuardia Act applies directly to this case[Footnote 18] to find in its enactment a clear disapproval

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of these free-wheeling judicial exercises. See Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 697, 700-709, 718 (1965) (separate opinion of Mr. Justice Goldberg).

To the extent that there exists today any relevant corpus of "national labor policy," it is in the law developed during the more than 30 years of administering our most comprehensive national labor scheme, the National Labor Relations Act. This Act represents the only existing congressional expression as to the permissible bounds of economic combat. It has, moreover, presented problems of federal-state relations analogous to those at bar. The Court has in the past referred to the NLRA for assistance in construing the Railway Labor Act, see, e. g., Steele v. Louisville & N. R. Co., 323 U.S. 192, 200-201 (1944); Railroad Trainmen v. Toledo, P. & W. R. Co., 321 U.S. 50, 61, n. 18 (1944), and we do so again here. Indeed, even if we were to revive the "common law" of labor relations, the common law has always been dynamic and adaptable to changing times, and we would today look to these legislatively based principles for guidance. Cf. Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457 (1957).

It should be emphasized from the outset, however, that the National Labor Relations Act cannot be imported wholesale into the railway labor arena. Even rough analogies must be drawn circumspectly, with due regard for the many differences between the statutory schemes.[Footnote 19] Cf. Railroad Trainmen v. Chicago River &

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I. R. Co., 353 U.S. 30, 31, n. 2 (1957). We refer to the NLRA's policies not in order to "apply" them to petitioners' conduct - for we conclude that this would be neither justified nor practicable - but only to determine whether it is within the general penumbra of conduct held protected under the Act or whether it is beyond the pale of any activity thought permissible.

In order to gain better perspective for viewing the central issue in this case - petitioners' alleged "secondary" activities - we examine first what we find to be polar examples of protected and unprotected conduct - primary strikes and picketing on the one hand, violence and intimidation on the other. VI. The Court has indicated, without reference to the National Labor Relations Act, that employees subject to the Railway Labor Act enjoy the right to engage in primary strikes over major disputes. In Railway Clerks v. Florida E. C. R. Co., 384 U.S. 238, 244 (1966), we held that:

"The unions, having made their demands and having exhausted all the procedures provided by Congress, were therefore warranted in striking. For the strike has been the ultimate sanction of the union, compulsory arbitration not being provided."

Similarly, in Florida E. C. R. Co. v. Railroad Trainmen, 336 F.2d 172, 181 (1964), the Court of Appeals for the Fifth Circuit concluded that "when the machinery of industrial peace fails, the policy in all national labor legislation is to let loose the full economic power of each [party]. On the side of labor, it is the cherished right to strike." Whether the source of this right be found in

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a particular provision of the Railway Labor Act[Footnote 20] or in the scheme as a whole, it is integral to the Act. State courts may not enjoin a peaceful strike by covered railway employees, no matter how economically harmful the consequences may be. Cf. Bus Employees v. Wisconsin Employment Relations Board, (1951); Automobile Workers v. O'Brien, 339 U.S. 454 (1950).

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from "secondary" activities. See F. Frankfurter & N. Green, The Labor Injunction 43-46, 170 (1930); 1 L. Teller, Labor Disputes and Collective Bargaining 145 (1940); E. Oakes, Organized Labor and Industrial Conflicts, 407 et seq. (1927); Barnard & Graham, Labor and the Secondary Boycott, 15 Wash. L. Rev. 137 (1940); Hellerstein, Secondary Boycotts in Labor Disputes, 47 Yale L. J. 341 (1938). Cf. Aaron, Labor Injunctions in the State Courts - Pt. I: A Survey, 50 Va. L. Rev. 950, 971-977 (1964). For these reasons, as well as those stated above, at 382-383, this body of common law offers no guidance for the problem at hand.

It was widely assumed that, prior to 1947, the Norris-LaGuardia Act prevented federal courts from enjoining any "secondary boycotts." See 93 Cong. Rec. 4198 (remarks of Senator Taft); Bakery Drivers v. Wagshal, 333 U.S. 437, 442 (1948). Indeed, in an opinion written by Judge Learned Hand, the Court of Appeals for the Second Circuit held that secondary conduct was fully protected by the Wagner Act. NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503 (1942). The 1947 Taft-Hartley amendments, 61 Stat. 140, and the 1959 Landrum-Griffin amendments, 73 Stat. 545, explicitly narrowed the scope of protected employee conduct under the National Labor Relations Act; 8 (b) (4) and 8 (e) of the Act proscribed a variety of secondary activities.[Footnote 21] But Congress enacted "no . . . sweeping prohibition" of

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secondary conduct. Carpenters v. NLRB, 357 U.S. 93, 98 (1958). And despite their relative precision of language,[Footnote 22] the experience under these amendments amply demonstrates that - as at common law - bright lines cannot be drawn between "legitimate `primary activity' and banned `secondary activity' . . . ." Electrical Workers v. NLRB, 366 U.S. 667, 673 (1961).

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or "neutral" employers are carrying on business activities - has been among the most mooted and complex under the Act. See generally Electrical Workers v. NLRB, 366 U.S. 667, 674-679 (1961); Moore Dry Dock Co., 92 N. L. R. B. 547 (1950); Lesnick, The Gravamen of the Secondary Boycott, 62 Col. L. Rev. 1363 (1962); Koretz, Federal Regulation of Secondary Strikes and Boycotts - Another Chapter, 59 Col. L. Rev. 125 (1959). It is difficult to formulate many generalizations governing common situs picketing, but it is clear that secondary employers are not necessarily protected against picketing aimed directly at their employees. In Electrical Workers v. NLRB, supra, for example, we noted that striking employees could picket at a gate on the struck employer's premises which was reserved exclusively for employees of the secondary employer, to induce those employees to refuse to perform work for their employer which was connected with the struck employer's normal business operations. The Court affirmed this principle in Steelworkers v. NLRB, supra, where it held that striking employees could picket to induce a neutral railroad's employees to refuse to pick up and deliver cars for the struck employer - even though the picketed gate was owned by the railroad, and the railroad's employees would have to pass by the place of picketing to pick up and deliver cars for other plants that were not struck.

If the common situs rules were applied to the facts of this case - considering, for example, FEC's substantial regular business activities on the terminal premises, FEC's relationships with respondent and the other railroads using the premises,[Footnote 23] the mixed use in fact of the

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purportedly separate entrances, and the terminal's characteristics which made it impossible for the pickets to single out and address only those secondary employees engaged in work connected with FEC's ordinary operations on the premises - the state injunction might well be found to forbid petitioners from engaging in conduct protected by the National Labor Relations Act. The fact that respondent, the other roads, or other industries in the State suffered serious economic injury as a consequence of petitioners' activities would not, of course, in itself render the picketing unlawful. Woodwork Manufacturers v. NLRB, 386 U.S. 612, 627 (1967); see NLRB v. Fruit & Vegetable Packers, (1964); cf. Bus Employees v. Wisconsin Employment Relations Board, 340 U.S. 383 (1951).

In short, to condemn all of the petitioners' picketing which carries any "secondary" implications would be to paint with much too broad a brush. VIII. We have thus far concluded that although the Florida courts are not pre-empted of jurisdiction over this cause, Part II, supra, the issues therein are governed by federal law, Parts III, IV, supra; that the Railway Labor Act permits railway employees to engage in some forms of self-help, free from state interference, ibid.; and, drawing upon labor policies evinced by the National Labor Relations Act, Part V, supra, that such protected self-help includes peaceful "primary" strikes[Footnote 24] and nonviolent picketing in support thereof, Part VI, supra, and that it cannot categorically be said that all picketing carrying "secondary" implications is prohibited, Part VII, supra. Given these conclusions, it remains to be considered

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by an agency with administrative expertise, but cf. NLRB v. Insurance Agents, 361 U.S. 477, 497-498 (1960), Congress has invested no agency with even colorable authority to perform this function. The very complexity of the distinctions examined in Part VII, supra, if nothing else, plainly demonstrates that we lack the expertise and competence to undertake this task ourselves.

Moreover, "[f]rom the point of view of industrial relations our railroads are largely a thing apart. . . . `The railroad world is like a state within a state.'" Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711, 751 (1945) (Frankfurter, J., dissenting). Thus, if Congress should now find that abuses in the nature of secondary activities have arisen in the railroad industry, see supra, at 376-377, n. 10, it might well decide - as it did when it considered the garment and construction industries, see NLRA 8 (e) - that this field requires extraordinary treatment of some sort. Cf., e. g., Railroad Trainmen v. Atlantic C. L. R. Co., 362 F.2d 649, 654-655 (1966). Certainly, it is for the Congress, and not the courts, to strike the balance "between the uncontrolled power of management and labor to further their respective interests." Carpenters v. NLRB, 357 U.S. 93, 100 (1958); see Woodwork Manufacturers v. NLRB, (1967); id., at 648-650 (separate memorandum). The Congress has not yet done so.

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acts, picketing - whether characterized as primary or secondary - must be deemed conduct protected against state proscription.[Footnote 25] Cf. Electrical Workers v. NLRB, 122 U.S. App. D.C. 8, 9-10, 350 F.2d 791, 792-793 (1965) (dissenting opinion); NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503 (1942). Any other solution - apart from the rejected one of holding that no conduct is protected - would involve the courts once again in a venture for which they are institutionally unsuited.

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v. Insurance Agents, 361 U.S. 477, 493-494, n. 23 (1960). There is, of course, no administrative agency equivalent to the NLRB with jurisdiction over railway labor disputes.

Footnote 20 Cf. 2 Fourth, 48 Stat. 1187, 45 U.S.C. 152 Fourth: "Employees shall have the right to organize and bargain collectively through representatives of their own choosing." It has been suggested that this provision is "comparable" to 7 of the NLRA, which grants employees the right to "self-organization" and the right to engage in "concerted activities . . .," and which, even apart from 13, protects the right to strike, see, e. g., Bus Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 389 (1951). Memorandum of Mar. 11, 1935, prepared for Senate Committee on Education and Labor comparing S. 1958 (74th Cong.) with S. 2926 (73d Cong.), 1 Legislative History of the National Labor Relations Act, 1935, at 1350-1351. However, 2 Fourth of the RLA, added in 1934, was designed primarily, if not exclusively, to prohibit coercive employer practices. See H. R. Rep. No. 1944, 73d Cong., 2d Sess., 2 (1934); L. Lecht, Experience under Railway Labor Legislation, c. V (1955). The explicit language of 7 of the NLRA was probably responsive to the difference between the "embryo organizations in the industries covered by" the NLRA, and the already "strongly organized" railway unions. Memorandum, supra, 1 Legislative History, supra, at 1329. For an indication of the economic power of railway labor organizations prior to enactment of the Railway Labor Act, see G. Eggert, Railroad Labor Disputes (1967).

Footnote 21 Petitioners contend that Senator Taft's statement, during the congressional debates, that 8 (b) (4) did not apply to persons subject to the Railway Labor Act, supra, n. 10, necessarily entails that the Railway Labor Act protects secondary conduct. But, except under unusual circumstances, the NLRA in its entirety is inapplicable to such persons. Part II, supra. It would be inappropriate to give any weight to these isolated passing remarks about one statutory scheme made in the context of amending an entirely different one.

Footnote 22 Section 8 (b) (4) "does not speak generally of secondary boycotts . . . [but] describes and condemns specific union conduct directed to specific objectives." Carpenters v. NLRB, supra, at 98.

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cause respondent and the other three carriers not to interchange traffic with FEC.

Petitioner Brotherhood of Railroad Trainmen, however, has no labor dispute with any carrier using the Terminal except FEC. The Florida court found that the pattern of picketing being used "would result in a virtual cessation of activities not only of the Terminal Company but also of numerous industries in Duval County and . . . Florida."

The order entered2 barred all picketing by FEC employees except at the designated single entrance. The trial court relied, inter alia, on the ground that "[t]he past and threatened picketing seeks to coerce plaintiff [respondent] into embargoing the FEC in violation of the Restraint of Trade Laws of this State." The laws referred to are Fla. Stat. 542.01 et seq. which set up a broad regulatory scheme banning "a combination of capital, skill or acts by two or more persons" to "create or carry out restrictions in trade or commerce." The District Court of Appeal, in affirming the trial court in the present case, said that it "exercised a proper authority in enjoining a violation of a valid state statute." 201 So.2d 253, 254.

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As Mr. Justice Brandeis said in Napier v. Atlantic Coast Line, 272 U.S. 605, 611, "The intention of Congress to exclude States from exerting their police power must be clearly manifested." And the Court, mindful of the force of the Tenth Amendment and the place of the States in our constitutional system, has resolved close cases in favor of a continuing power on the part of the States to legislate in their customary fields and thus has permitted state regulations to mesh with federal controls. See Federal Compress Co. v. McLean, ; Townsend v. Yeomans, 301 U.S. 441, 454; Penn Dairies v. Milk Control Commission, .

Even here, there have been dissents when it came to particular applications of the principle to the facts of a case. But I venture that in no case prior to today's decision has a State been barred from legislating in a field which is not specifically touched by the federal regulation and which remains after the federal remedies have spent themselves and proved to be of no avail.

The States should be allowed a free hand in labor controversies except and unless Congress has adopted a contrary policy. We search in vain for any such federal law in this context.

I would affirm the judgment.

[Footnote 1] When the strike started on January 23, 1963, respondent designated a special gate for the exclusive use of FEC employees who report to work at the Terminal.

The strike originally involved only nonoperating employees of FEC. But in 1966 the operating unions also went on strike against FEC.

[Footnote 2] We were asked to review a temporary injunction issued by the trial court. See 385 U.S. 935. The permanent injunction, now here, was affirmed per curiam by the District Court of Appeal, 201 So.2d 253, and the Florida Supreme Court dismissed an appeal and denied certiorari.

[Footnote 3] The picketing was first enjoined by the Federal District Court in a proceeding brought by two carriers (other than FEC) and the Terminal Company. That judgment was reversed by the Court of Appeals which held that the requirements of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. 101 et seq. had not been met. 362 F.2d 649.

We affirmed the Court of Appeals by an equally divided Court. 385 U.S. 20.

[Footnote 4] See, e. g., NLRB v. Rice Milling Co., 341 U.S. 665; Electrical Workers v. NLRB, 366 U.S. 667; Steelworkers v. NLRB, 376 U.S. 492.

[Footnote 5] See S. Rep. No. 105, 80th Cong., 1st Sess., 19; Teamsters Union v. New York, N. H. & H. R. Co., 350 U.S. 155, 159-160.

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