# National Labor Relations Board v. Nash-Finch Company/Dissent White

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion White
United States Supreme Court
404 U.S. 138
National Labor Relations Board v. Nash-Finch Company
Argued: Oct. 19, 1971 --- Decided: Dec 8, 1971
Mr. Justice WHITE, dissenting.
* The National Labor Relations Board here sues in federal court to enjoin the enforcement of a state court injunction against picketing. Title 28 U.S.C. § 2283 bars such injunctions except in specified situations. One exception permits injunctions by a federal court which are 'necessary in aid of its jurisdiction.' The majority rightfully concedes that this exception is inapplicable here. A state court injunction in no way interferes with the Board's admitted power to prevent unfair labor practices or to secure federal injunctions in those situations specifically identified by Congress. Capital Service, Inc. v. National Labor Relations Board, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887 (1954), amply protects the Board's power to enjoin state court proceedings where an unfair labor practice is in progress and the jurisdiction of a federal court might later be invoked, but no such Board adjudication was occurring here concerning the picketing. Capital Service is not controlling.
Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957), held that the restrictions of § 2283 do not apply to the Federal Government. The Board identifies itself with the United States and therefore asserts that § 2283 is inapplicable to it. I cannot agree. The juridical status of the Board is not perfectly congruent with that of the United States. For example, although it may file claims for back pay in bankruptcy proceedings, it does not enjoy the priority accorded to debts owing to the United States. Nathanson v. National Labor Relations Board, 344 U.S. 25, 73 S.Ct. 80, 97 L.Ed. 23 (1952). Leiter Minerals had nothing to do with the circumstances in which an agency such as the NLRB should be treated as the United States; nor does that case purport to modify the rule of Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U.S. 81, 85, 61 S.Ct. 485, 487, 85 L.Ed. 595 (1941), that the intention of Congress to bestow the privileges and immunities of the United States on a federal agency must be clearly manifest. The authority of the Federal Government to secure an injunction in Leiter Minerals was implied under the judicial rule that a statute that divests pre-existing rights or privileges will not be applied to the sovereign in the absence of explicit language. 352 U.S., at 224, 77 S.Ct., at 290. In the instant case, however, we deal with a statutorily defined agency creaed after the passage of § 2283 and possessing certain specified injunctive powers. The Board can claim no residual sovereignty such as that which was held in United States v. United Mine Workers, 330 U.S. 258, 272-273, 67 S.Ct. 677, 685 686, 91 L.Ed. 884 (1947), to exempt the United States Government from the restrictions of the Norris-LaGuardia Act, and by a familiar rule of statutory construction, the enumeration of its injunctive powers should be held to preclude the existence of other powers. In light of the congressional disinclination to authorize anything more than extremely limited interferences with state court proceedings by federal courts, and in view of this Court's reluctance to approve such interference by way of the equitable powers of federal courts, Younger v. Harris, 401 U.S. 37, 43-45, 91 S.Ct. 746, 750-751, 27 L.Ed.2d 669 (1971); Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286, 90 S.Ct. 1739, 1742, 26 L.Ed.2d 234 (1970), implicit exceptions from § 2283 are at best suspect.
Section 2283 clearly permits injunctions against state court proceedings if 'expressly authorized by Act of Congress.' There is no claim here that the injunction sought by the Board is expressly authorized by any statute. Indeed, it is admitted that express authorization is lacking, and we are asked to imply such power. The Court does so, but its holding ignores both the language and the traditional interpretation of § 2283 and is inconsistent with the regulatory scheme of the LMRA.
Section 8 of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, specifies unfair labor practices by employers and unions. Section 9 provides for Board determination of bargaining units and employee representatives. Section 10 specifies the procedures to be employed in preventing unfair labor practices prohibited by § 8. Two aspects of § 10 are critical here. First, the Board is not granted unqualified powers to enforce the Act. The statute conditions Board action against unfair labor practices upon the filing of a charge; it may not act on its own motion. The requirement is jurisdictional. Montgomery Ward & Co. v. National Labor Relations Board, 385 F.2d 760, 763 (CA8 1967); Texas Industries, Inc. v. National Labor Relations Board, 336 F.2d 128, 132 (CA5 1964); Int'l Union of Electrical, Radio & Machine Workers v. National Labor Relations Board, 110 U.S.App.D.C. 91, 94, 289 F.2d 757, 760 (1960); Consumers Power Co. v. National Labor Relations Board, 113 F.2d 38, 41-43 (CA6 1940); National Labor Relations Board v. Hopwood Retinning Co., 98 F.2d 97, 101 (CA2 1938); National Labor Relations Board v. National Licorice Co., 104 F.2d 655, 658 (CA2 1939), modified on other grounds, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799 (1940); Douds v. Int'l Longshoremen's Assn., 147 F.Supp. 103, 108 (SDNY 1956), aff'd, 241 F.2d 278 (CA2 1957). See also National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 369, 60 S.Ct. 569, 579, 84 L.Ed. 799 (1940). The Board has no roving, unqualified power to prevent unfair labor practices or to enforce the provisions of § 7 declaring that employees shall have the right to organize, bargain collectively, and otherwise engage in concerted activities. In the case before us, no unfair labor practice charge arising out of the union's picketing has been filed, either by the union or by the employer. Yet the Board appeared in a federal court seeking an injunction seemingly aimed at protecting employee rights guaranteed by § 7.
Second, after a charge has been filed and an unfair labor practice complaint has been issued the Act grants the Board the power to seek 'appropriate temporary relief or restraining order' from the courts. § 10(j). Further, § 10(l) specifies in even greater detail the circumstances under which temporary injunctions may be secured when charges under §§ 8(b)(4)(A), 8(b)(4)(B), 8(b) (4)(C), 8(e), or 8(b)(7) have been filed with the Board. Sections 10(e) and 10(f) define the powers of the Board and the courts to issue injunctions in connection with enforcement of Board orders after unfair labor practices have been adjudicated by the Board. Nowhere in the statute is there a provision authorizing the Board to seek injunctions prior to the filing of unfair labor practices or the issuance of a complaint. Nowhere is the Board authorized to use the injunctive power to enforce § 7 rights, except in connection with adjudicating unfair practices. Congress specified the powers of the Board with some care, particularly its powers to seek injunctions. Manifestly, Congress was aware of its longstanding policy against indiscriminate injunctions in labor disputes; for in § 10(h) it exempted from the Norris-LaGuardia Act only those situations where the courts are 'granting appropriate temporary relief or a restraining order, or making and entering a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part an order of the Board as provided in this section * * *.' (Emphasis added.) On the floor of the Senate, Senator Smith answered the contention that the passage of § 10(l) would weaken the Norris-LaGuardia Act:
'The only comment I can make on that statment is that we were very careful in this bill to protect the injunctive process as it is protected in the Norris-LaGuardia Act, except in exceptional cases where the Government has to step in. In national paralysis cases we permit the Attorney General to step in, and in the boycott and jurisdictional strike cases we permit the National Labor Relations Board to step i(; and there is no other approach to the courts for injunction except in those two situations.' 93 Cong.Rec. 4283. (Emphasis added.)
In such a context, today's decision is improvident. As a statutory matter under the Labor Management Relations Act, the Board has no power to seek the injunction it now demands even absent the barriers established by § 2283. And under that section, it is error to clothe the agency with the exception applicable to the United States. When an agency of the United States, rather than the United States itself, is plaintiff in an injunction action, the specific exceptions to § 2283 should be deemed controlling, particularly that exception directing inquiry to whether the injunction is 'expressly authorized by Act of Congress.' Here it is plain to me that the Board has no such power as it now claims to have, and I would affirm the judgment below.
A few additional words are appropriate. Even if, contrary to my view, the Board has power to seek an injunction to prevent interference with § 7 rights absent an unfair labor practice charge, it should not be able to obtain equitable relief by the mere conclusory allegation that such rights are 'arguably' protected under the LMRA. Although § 7 rights must be interpreted according to federal law, 'Congress has not federalized the entire law of labor relations,' Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 309, 91 S.Ct. 1909, 1929, 29 L.Ed.2d 473 (1971) (White, J., dissenting), nor has it wholly displaced state and federal courts in the administration of federal labor policy.
The employer in this case was subjected to picketing that it thought illegal and unprotected. It sought and was granted a state court injunction over protests that state judicial power was preempted by federal law and the exclusive jurisdiction of the NLRB. Rather than allowing the union to appeal the injunction through the state court system, and to this Court if necessary, as the union would ordinarily have to do, Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, supra, the Court today permits the Board to short-circuit that process by securing a federal injunction, solely upon allegations that the conduct of the union was arguably protected under federal law and was within the exclusive jurisdiction of the NLRB. The Board does not, however, intimate what provisions of the LMRA the union was violating in picketing this employer. It does not assert the existence or imminence of an unfair labor practice by either side in connection with the picketing. It suggests no way in which the employer could secure an adjudication of whether the union's conduct was protected under federal law. It does not indicate what 'superior federal interests' the state decree frustrated. Absent an unfair labor practice charge and complaint, the Board itself has no jurisdiction at all, let alone exclusive jurisdiction, to hold hearings and issue cease-and-desist orders to prevent interference with § 7 rights in situations like this.
Congress' swift overruling of the Court's decision in Guss v. Utah Labor Relations Bd., 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957), by passage of NLRA § 14(c), 73 Stat. 541, 29 U.S.C. § 164(c) should make the Court approach with great caution the creation of another 'vast no-man's land, subject to regulation by no agency or court.' Id., at 10, 77 S.Ct., at 603. The NLRA was not enacted in a void and its strictures presuppose a certain degree of state authority and regulation:
'A holding that the States were precluded from acting (to enforce their trespass laws against invasions of private property) would remove the backdrop of state law that provided the basis of congressional action but would leave intact the narrower restraint present in federal law through § 7 and would thereby artificially create a no-law area.' Taggart v. Weinacker's, Inc., 397 U.S. 223, 228, 90 S.Ct. 876, 878, 25 L.Ed.2d 240 (1970) (Burger, C.J., concurring) (emphasis in original).
The Board should not, therefore, be able to obtain an injunction by merely alleging that conduct is 'arguably protected' by the LMRA. This rationale for pre-empting the applicability of state law and the authority of state courts developed to protect the exclusive jurisdiction of the Board. Int'l Longshoremen's Assn., Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 201, 90 S.Ct. 872, 875, 25 L.Ed.2d 218 (1970) (White, J., concurring); Taggart v. Weinacker's, Inc., supra, at 227-228, 90 S.Ct., at 878 (Burger, C.J., concurring). Where the Board is itself not only unwilling but apparently powerless to move against the challenged conduct, this rationale is a species of federal overkill, pre-empting the field to protect nothing. Of course, federal law remains paramount in its own arena, but if the Board has power to enforce it in this situation, it should be required to prove its case before obtaining an injunction and should demonstrate that federal law has been violated and that equitable relief is necessary to prevent its frustration. An unwarranted and illogical lacuna in the legal regulation of labor-management relations should not be extended. The Board should not be entitled to an injunction against state court proceedings unless it persuades a federal court that the state decree is actually interfering with rights protected by federal law.
Mr. Justice BRENNAN would affirm the judgment of the Court of Appeals for the reasons stated in Part I of the dissenting opinion of Mr. Justice WHITE.

## Notes

* ↑ Although the Board had held an unfair labor practice hearing and had found the employer guilty of certain unfair labor practices while exonerating it of others, this proceeding is not relevant to the issues in the present case because it did not concern the union's picketing. The union had originally filed a complaint and an election petition with the Board, charging the employer with a refusal to bargain and with interfering with the employees' rights to organize. A complaint was issued, and a hearing held. The trial examiner on April 28, 1969, found the employer guilty of certain § 8(a)(1) and § 8(a)(5) unfair labor practices and entered a cease-and-desist order against certain activities of the employer. A month after the trial examiner's decision, the union began its picketing, and the employer then secured the state court injunction limiting the picketing that is at issue in this case. On August 29, 1969, the Board filed a complaint in federal district court seeking to restrain the employer from enforcing the state court injunction. On September 17, 1969, the Board reversed the decision of the trial examiner and held that the employer was not guilty of a § 8(a)(5) refusal to bargain nor of certain of the § 8(a)(1) violations the trial examiner had found, but it found the employer guilty of certain other § 8(a)(1) infractions and entered a limited cease-and-desist order. Although the picketing occurred contemporaneously with the § 8(a)(1) and § 8(a)(5) unfair labor practice proceeding, it was never an issue before the Board.
* ↑ In Nathanson, as here, the Board was attempting to protect the § 7 rights of private parties. If anything, the situation in Nathanson was a much stronger one for equating the status of the Board to that of the United States, since there the Board was seeking to enforce a back pay award (by filing a proof of claim against the employer, who had become a bankrupt, and asserting that its back pay order was entitled to the priority of a debt owing the United States under § 64(a)(5) of the Bankruptcy Act, 11 U.S.C. § 104(a)(5)) which it had assessed after adjudicating the employer guilty of a § 8 unfair labor practice. The Board was thus clearly discharging a designated statutory function, as distinguished from the instant case where the Board's jurisdiction to evaluate the disputed picketing in an unfair labor practice proceeding is totally unclear. The Court held, however, that '(i)t does not follow that because the Board is an agency of the United States, any debt owed it is a debt owing the United States' under the Bankruptcy Act, 344 U.S., at 27, 73 S.Ct., at 82, and it disallowed the asserted priority on the ground that the function of the precedence given the United States under the Bankruptcy Act was to insure the collection of claims that had accrued to the fisc. The majority's attempt to distingush Nathanson is less than convincing.
* ↑ Both Menihan and the present case present the question of whether a Governmental agency is clothed with a particular attribute of sovereignty: in Menihan, an exemption from payment of costs after unsuccessful litigation under Fed.Rule Civ.Proc. 54(d) which was afforded to 'the United States, its officers, and agencies * * * to the extent permitted by law,' in the present case, an implicit exemption from § 2283. The Court emphasized that because the doctrine of sovereign immunity gives the Government a privileged position, it has been 'appropriately confined,' 312 U.S., at 84, 61 S.Ct., at 486, and noted that 'the government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work.' Ibid., quoting Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 388, 59 S.Ct. 516, 517, 83 L.Ed. 784 (1939). Since 'there is no presumption that the agent is clothed with sovereign immunity,' 312 U.S., at 85, 61 S.Ct., at 487,, the Court examined the statute establishing the RFC and concluded that there was no affirmative indication by Congress that it had meant to exempt the RFC from paying costs after it had lost a lawsuit.
* ↑ This rule has been frequently recognized by the Court, United States v. De la Maza Arrendondo, 6 Pet. 691, 724, 8 L.Ed. 547 (1832); Kendall v. United States, 107 U.S. 123, 125, 2 S.Ct. 277, 278, 27 L.Ed. 437 (1883); Neuberger v. Commissioner of Internal Revenue, 311 U.S. 83, 88, 61 S.Ct. 97, 101, 85 L.Ed. 58 (1940).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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