International Union v. Wisconsin Employment Relations Board/Dissent Douglas
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice RUTLEDGE concur, dissenting.
This strike was legal under the Wagner Act in 1945 and 1946 and its legality was not affected by the Labor Management Act of 1947. I think, therefore, that the effort of Wisconsin to make it unlawful must fail because it conflicts with the national policy.
Section 13 of the Wagner Act is written in language too plain to admit of doubt or ambiguity: 'Nothing in this Act shall be construed so as to interfere with or impede or diminish in anyway the right to strike.' The Court held in National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U.S. 240, 256, 59 S.Ct. 490, 496, 83 L.Ed. 627, 123 A.L.R. 599, that by this provision Congress 'recognized the right to strike,-that the employees could lawfully cease work at their own volition because of the failure of the employer to meet their demands.' The congressional policy of protection of strikes as economic sanctions is now converted into a congressional policy of hands off.
If the States can outlaw this strike, I see no reason why they cannot adopt regulations which determine the manner in which strikes may be called in these interstate industries. Can they in practical effect outlaw strikes by requiring a unanimous vote of the workers in order to call one? The federal Board is not authorized, it is said, to forbid or control strikes because of the method by which they are called or the way in which they are utilized. If that is the criterion, as the Court declares, then the manner of calling of strikes is left wholly to the States. The right to strike, which Congress has sanctioned, can in that way be undermined by state action. The federal policy thus becomes a formula of empty words.
That conclusion is made all the more surprising when § 13 of the Act is read in conjunction with § 7 which provides, 'Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual air or protection.'  (Italics added.) Section 7 read in conjunction with § 13 must mean that one of the 'concerted activities' in which employees may engage is to strike in these interstate industries. In all of labor's history no 'concerted activity' has been more conspicuous and important than the strike; and none was thought to be more essential to recognition of the right to collective bargaining. Moreover, the strike historically and in the present cases was used to make effective the collectiv bargaining power which § 7 of the Wagner Act guarantees. The right to strike, recognized by § 13, is thus an integral part of the federal labor-management policy.
Section 7 was invoked in Allen-Bradley Local No. 1111, United Electrical Radio and Machine Workers of America v. Wisconsin Employment Relations Board, 315 U.S. 740, 750, 62 S.Ct. 820, 826, 86 L.Ed. 1154, to challenge as unconstitutional Wisconsin's regulation of picketing, threats, and violence in connection with labor disputes. We disallowed the defense, holding that those matters were problems within the reach of the traditional police power of the States and remained there after passage of the federal Act because it had not undertaken to regulate them.
The Wagner Act, to be sure, did not undertake to give the federal agency control over the manner of calling strikes or the purpose for which they may be called. To that extent these cases have common ground with the Allen-Bradley decision. But there the similarity ends. In Allen-Bradley, supra, the Congress had not expressed a policy on picketing, threats or violence in connection with labor disputes. In this case, as § 13 read in conjunction with § 7 makes plain, it has adopted a policy on strikes.
It is the presence of a conflicting federal policy that determines whether state action must give way under the Supremacy Clause,  even though there may be no actual or potential collision between federal and state administrative agencies. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447. In Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, a state regulation of the licensing of business agents of unions subject to the federal Act was held to be in conflict with the Wagner Act not because the federal Board had any licensing jurisdiction but because the state law interfered with the freedom of collective bargaining guaranteed by § 7 of the Act. The present cases follow a fortiori, if the strike is included in the 'concerted activities' guaranteed by § 7.
The concerted activities in these cases were as old as labor's struggle for existence and were aimed at (as well as a part of) the purposes which § 7 of the federal Act was designed to protect.  Therefore the legality of the methods used is exclusively a question of federal law. 
^1 It was held in National Labor Relations Board v. Peter Cailler Kohler Swiss Chocolates Co., 2 Cir., 130 F.2d 503, 505, 506, that the right to engage in a sympathetic strike or a secondary boycott was a concerted activity protected by § 7 prior to the 1947 amendments. It was also held in National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 94 F.2d 862, 871, that a strike because of an employer's refusal to negotiate was protected by § 13, and employees so engaged could recover their positions even at the expense of workers hired to replace them during the strike.
^2 Article VI, Clause 2 of the Constitution.
^3 Although this litigation is controlled by the Wagner Act, there is nothing in the Labor Management Relations Act of 1947 that suggests that Congress wished to withdraw its protection from the right to strike except to the extent specially provided by the amendments to the Act. See S.Rep.No.105, 80th Cong., 1st Sess. 434 (1947). It makes some strikes unfair labor practices. 61 Stat. 141, 29 U.S.C. § 158(b), 29 U.S.C.A. § 158(b). But the strikes so condemned concededly do not include the kind we have in the present cases. The amendments to §§ 7 and 13, 29 U.S.C. §§ 157, 163, 29 U.S.C.A. §§ 157, 163, do not restrict the right as it previously existed. Moreover, the 1947 legislation comprehensively defines a strike, 29 U.S.C. § 142, 29 U.S.C.A. § 142, as 'any concerted slow-down or other concerted interruption of operations by employees', which is broad enough to include the activity which Wisconsin has condemned here.
^4 The Court heretofore has held that the measure of the right to strike in these interstate industries is a question of federa law. National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U.S. 240, at pages 255-257, 59 S.Ct. 490, at pages 496, 497, 83 L.Ed. 627, 123 A.L.R. 599. Thus § 2(3) of the Wagner Act defined employee to 'include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute * * *.' 49 Stat. 450, 29 U.S.C. § 152(3), 29 U.S.C.A. § 152(3). In accordance with this section the Court has held that participation in a strike did not remove workers from the protection of the Act and that they retained the status of employees. See National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-347, 58 S.Ct. 904, 910, 911, 82 L.Ed. 1381. The question of what is a 'labor dispute' within the meaning of § 2(3) necessarily involves a consideration of whether the strike was or was not justified. See National Labor Relations Board v. Stackpole Carbon Co., 3 Cir., 105 F.2d 167, 176.
Determination of the legality of strikes in interstate industries by federal law is necessary if the administration of the federal system of labor-management relations is to be uniform and harmonious. The status of workers as employees will determine what relief they may be entitled to under the Federal Act. See Phelps Dodge Corporation v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217. Reinstatement rights may indeed depend on whether a worker has lost his status as an employee through activities not comprehended in the federal protection of the right to strike. National Labor Relations Board v. Fansteel Metallurgical Corporation, supra.