Baltimore Building & Construction Trades Council v. Maryland Port Authority

Hammond, J., delivered the opinion of the Court. Upon application of the Maryland Port Authority, the Circuit Court of Baltimore City issued, ex parte, a preliminary restraining order, which it later made permanent, enjoining, (a) the Baltimore Building and Construction Trades Council from maintaining a picket line or picket boat at the terminals of the Authority for the purpose of inducing the Authority “* * * to require any contractor working on construction contracts at the said terminals to pay its employees the prevailing or union wages * * and (b) the Freight Drivers and Helpers Local No. 557 and the Seafarers International Union of North America from “* * * advising persons attempting to deliver freight to said terminals, or attempting to pick up freight at said terminals, or attempting to dock or undock ships carrying freight or passengers to or from said terminals, that any picketing or patrolling conducted in violation of this order is legitimate.” In their appeal the three Unions contend: (1) that the preliminary restraining order was void ab initio because the provisions of Code (1964 Replacement Volume 8B), Art. 100, Secs. 63-75, dealing generally with injunctions in labor disputes, were not complied with; 1 (2) that both the preliminary order and ²³⁵ the permanent injunction were void because the court lacked jurisdiction to issue them under Sec. 65 of Art. 100 of Code; (3) that the Circuit Court lacked jurisdiction to issue the preliminary order and the permanent injunction because Congress has confided to the National Labor Relations Board sole and exclusive right and power, in the first instance, to deal with the activities enjoined by that court; (4) that the Circuit Court erred in finding an unlawful purpose in the picketing by the Building Trades Council; and (5) that the enjoining orders unconstitutionally deprive the other two Unions of the right of free speech. We are persuaded that the contention of federal preemption of the right and power of the state to determine originally the lawfulness of the activities of the Unions complained of by the Port Authority is sound and controlling and, therefore, do not reach the other questions posed. At the hearing below, the Unions offered no evidence.

The Port Authority, which is an instrumentality of the State of Maryland performing essential governmental functions having as their principal purpose the promotion of commerce, Code (1964 Replacement Volume 5), Art. 62B, Secs. 1 and 3 a, produced witnesses who testified to the following facts. The Authority owns and operates the Dundalk Marine Terminal and the Locust Point Marine Terminal, both on the shore of the Baltimore harbor. Through these terminals pass general import and export cargo from and to all parts of the world. As early steps in an extensive program of additions and improvements to its facilities, estimated to cost in total $30,000,000, the Authority in December 1963 awarded a contract for modification of the heating system at Locust Point to the J. H. Lawrence Co. (Lawrence), and in April 1964 a contract for construction of a bulkhead and appurtenances, to be built at Dundalk at a cost of $3,130,000, to McLean Contracting Company (McLean).

In January 1964 the president of the Trades Council told the Deputy Director of ²³⁶ Engineering and Planning for the Authority that he disagreed with a ruling of the general counsel of the Authority that it could not legally include a prevailing wage clause in its construction contracts, that the lack of such a clause made it difficult for the Union to keep standards in the area at a proper level and that unless the situation was rectified “there may he tie-ups of the port facilities of the Authority.” On April 22, 1964, the Attorney General of Maryland issued an opinion which the Authority had asked for, holding that it would be illegal for the Authority to require a prevailing wage clause in its contracts without express legislative authorization. On the morning of Tuesday, May 12, 1964, pickets acting for the Trades Council appeared at the gates of the Dundalk and Locust Point Terminals. They carried signs headed “Notice to the Public” which, at Dundalk, read: “Employees of McLean Contracting Co. do not receive union wages, benefits and conditions.—Baltimore Building and Construction Trades Council” and, at Locust Point, read the same except that Lawrence’s name appeared instead of McLean’s, although no employees of Lawrence then were on the job, the contract having been completed except for details to be later attended to. The pickets passed out leaflets, also headed “Notice to the Public” which recited, over the signature of the Trades Council, that wages and conditions of employment of employees of McLean or Lawrence, depending on the terminal at which they were distributed, were below those the Union had established and was attempting to establish in the area for similar work, and gave various specific examples.

The handbills then said: “The sole purpose of patrolling this site is to inform the public that McLean Contracting Co. is not paying the prevailing rate of pay nor providing the prevailing conditions of employment to its employees. “THIS NOTICE IS ADDRESSED ONLY TO THE PUBLIC. IT IS NOT ADDRESSED TO ANY EMPLOYER OR TO ANY EMPLOYEES. We are not attempting to organize employees of McLean Contracting Co. nor are we attempting to obtain recognition or bargaining for them. Nor is there any ²³⁷ intent or attempt to induce or encourage any employee of any employer to refuse to work, transport or otherwise handle or work on any materials, etc. No one is requested to cease doing business with any person. “We believe that the public should be familiar with what is going on and that is the sole purpose of the patrolling.” At first the pickets at the gates of the terminal permitted trucks bringing in export freight or coming to pick up imports to pass without protest.

On Wednesday, May 13, they began to turn trucks back by holding up a sign “Call EA 7-3700.” Most of the truck drivers would stop, leave their trucks to make a telephone call and then drive away without entering the terminal. On the afternoon of May 13, some one hundred forty trucks drove up to the gate at Locust Point and only about forty crossed the picket line. An employee of the Authority called EA 7-3700 on the morning of May 13, pretending to be a truck driver asking for instructions, and was advised that he had called Freight Drivers and Helpers Local No. 557 and was told to use his own judgment whether to cross the picket line, but that he would be protected in his job if he refused to do so. He called again in the afternoon and was told not to cross the line.

On Tuesday, May 12, the day the picketing began at the terminal gates, the Trades Council stationed a picket boat in the harbor off the Dundalk terminal. On that day the crew— members of the Seafarers International Union—of one of two tugs dispatched by their owner, the Curtis Bay Towing Co., to assist in docking the SS Ames Victory at Dundalk, refused to pass the picket boat. The following day the ship was assisted by tugs in leaving the Authority’s pier only after the president of the Trades Council withdrew the picket boat because the Ames Victory was carrying military cargo. On May 13 the SS Argentina, a cruise ship returning from Bermuda—on which, among many other holiday passengers, was the Governor of Maryland—had to be diverted from its intended dock at the Dundalk terminal to Pier 1 of the Pennsylvania Railroad Company, with much attendant delay, frus ²³⁸ tration and confusion to the homecoming passengers, because the port agent of the Seafarers Union advised the Curtis Bay Towing Company that his Union considered the picket boat to have established “a legitimate picket line.” He said he had so advised the employees of the towing company (who were members of his Union) and that good union men would not cross a legitimate picket line.

The preliminary restraining order was issued shortly after noon on May 14 by Judge Barnes, and a hearing was held on May 15, at which the testimony produced by the Authority, summarized above, was received. Judge Barnes made findings that “* * * the purpose of the picket signs and the notice to the public used by the Baltimore Trades Council was to tie up the facilities of the Authority and to force the Authority to insert a prevailing wage clause in its construction contracts, * * *. Although the ‘Notice to the Public’ is carefully drawn to indicate that its purpose is to inform the public only, its real purpose was to prevent the use of the Authority’s facilities and this purpose was accomplished.” Both sides agree that facets of interstate commerce necessary as a basis for federal jurisdiction are here present, and the picketing both on land and water was always peaceful; but the Authority seizes on the findings of Judge Barnes as demonstrable reasons why the federal labor laws do not control. It argues first that picketing a state agency to close down its activities in order to influence it to do an act illegal under state law is neither a prohibited nor a protected activity under the federal labor laws but is unlawful under state law and, second, that even if the picketing was protected under the National Labor Relations Act, the state court was not deprived of jurisdiction because the picketing was to compel action which was illegal under the law of Maryland.

On the other hand, the Unions say that their activities were either protected under Sec. 7 of the National Labor Relations Act ( 29 U.S.C. Sec. 157 ) or prohibited under Sec. 8 of that Act ( 29 U.S.C. Sec. 158 ), and if on either premise this is even reasonably arguable, the Supreme Court has held definitely and unmistakably that as part of a national policy Congress has confided the original determination of such questions to the Na ²³⁹ tional Labor Relations Board to the complete exclusion of state courts or agencies. We think the Unions are right. In Garner v. Teamsters, C. & H. Union, 346 U. S. 485 , 98 L. Ed. 228 (1953), the union peacefully picketed a trucking company’s loading platform in order, the trial court found, to coerce the company into compelling or influencing their employees to join the union. Drivers of other employers refused to cross the picket line and the trucker’s business fell off as much as ninety-five per cent.

The Supreme Court of Pennsylvania reversed the injunction which the trial court had issued, on the finding that the picketing was a violation of the labor laws of Pennsylvania, and the Supreme Court of the United States affirmed, holding that the activities complained of by the trucker fell within the exclusive jurisdiction of the National Labor Relations Board and that, therefore, state remedies were precluded. Justice Jackson, for the Court, pointed out that this was not a case of violence or mass picketing where the state could exercise its historic powers over traditionally local matters of public safety and order and use of streets and highways, 2 and then said (pp. 488-491 of 346 U. SO: ²⁴⁰ “Congress has taken in hand this particular type of controversy where it affects interstate commerce. * * * It is not necessary or appropriate for us to surmise how the National Labor Relations Board might have decided this controversy had petitioners presented it to that body. The power and duty of primary decision lies with the Board, not with us. * * * “Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order.

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. * * * 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 reasoning which prohibits federal courts from intervening in such cases, except by way of review or an application of the federal Board, precludes state courts from doing so.” In Weber v. Anheuser-Busch, Inc., 348 U. S. 468 , 99 L. Ed. 546 (1955), a labor union picketed an employer’s plant to compel him to add to a contemplated collective labor agree ²⁴¹ tnent a clause obligating him to employ, for the repair or replacement of machinery, only contractors who had collective agreements with the union. The employer filed a charge of unfair labor practice under Sec. 8 (b) (4) (D) of the Labor Management Relations Act. The Board refused to act, holding that the section invoked had not been violated.

While the charge was pending before the Board, the employer sought an injunction in a Missouri state court which later issued it. More than a year after the Board had refused to act, the Supreme Court of Missouri affirmed on the ground that the union’s activities violated the state’s restraint of trade act, treating the Board’s ruling as a determination that there was no basis for a charge of unfair labor practice under the Labor Management Relations Act. The Supreme Court of the United States held that the state court’s jurisdiction to enjoin the union’s conduct was preempted by the federal labor laws. The Court held that the determination of the Board that Sec. 8 (b) (4) (D) did not apply, did not necessarily mean also that subsections (A) or (B) of Sec. 8 (b) (4) had or had not been violated.

It said (pp. 478 and 479 of 348 U. S.) : “The point is rather that the Board, and not the state court, is empowerd to pass upon such issues in the first instance. * * * “Nor is it within our competence now to determine whether the conduct in controversy is subject to the authority of Subsections (A) or (B). Under the Board’s decisions, for example, it may become pertinent whether this is eventually deemed, primary pressure, directed at respondent to force insertion of the disputed clause in its contract with the I AM, rather than secondary pressure, aimed at subcontractors to force them to use IAM labor. We are not now ruling on that distinction. However, the point is pertinent to our discussion, because even if it were clear that no unfair labor practices were involved, it would not necessarily follow that the State was free to issue its injunction.

If this conduct does not fall within the prohibitions of § 8 of the Taft-Hartley Act, it may ²⁴² fall within the protection of § 7, as concerted activity for the purpose of mutual aid or protection.” (Emphasis supplied) The Supreme Court went on to deal with the argument of the employer that Garner did not control because there the State and Congress both were attempting to regulate labor relations as such, while in Weber Missouri was not prohibiting labor’s conduct for any reason having to do with labor relations but, rather, because that conduct contravened a state law which dealt generally with restraint of trade. This argument was disposed of on the assumption that the union’s activities were prohibited by saying (p. 479 of 348 U. S.) : “We do not think this distinction is decisive.” On the assumption that the union’s conduct was protected, the Court said (pp. 480 and 481 of 348 U. S.) : “Moreover, we must not forget that this case is not clearly one of ‘unfair labor practices.’ Certainly if the conduct is eventually found by the National Labor Relations Board to be protected by the Taft-Hartley Act, the State cannot be heard to say that it is enjoining that conduct for reasons other than those having to do with labor relations. * * * Regarding the conduct here in controversy, Congress has sufficiently expressed its purpose to bring it within federal oversight and to exclude state prohibition, even though that with which the federal law is concerned as a matter of labor relations be related by the State to the more inclusive area of restraint of trade.” The Supreme Court pulled together and precisely restated the effect of its earlier holdings in San Diego Building Trades Council v. Garmon, 359 U. S. 236 , 3 L. Ed. 2d 775 (1959). There the trial court found as facts the following: (1) the unions sought from the Garmons (three members of the family were respondents) an agreement to continue to employ only those workers who were already members of the unions or who applied for membership within thirty days; (2) the Garmons refused, claiming that none of their employees appeared to de ²⁴³ sire to join a union and, in any event, as a prerequisite, one of the unions must be designated as a collective bargaining agent; (3) the union began immediately to peacefully picket the Garmons’ place of business and to exert pressure on customers and suppliers in order to persuade them to stop dealing with the Garmons; and (4) “The sole purpose of these pressures was to compel execution of the proposed contract.” (P. 237 of 359 U. S., emphasis supplied) The unions had contested these findings, claiming that their only purpose in picketing was to educate the workers and persuade them to become members. The trial court enjoined the unions from picketing and applying other pressures until one of them had been properly designated as bargaining agent, and awarded the Garmons $1,000 as damages.

The California Supreme Court affirmed. The Supreme Court of the United States granted certiorari and remanded the case, 351 U. S. 923 , 100 L. Ed. 1453 (1956), deciding that federal preemption prevented the state injunction but leaving open the matter of damages under California law. On remand, the Supreme Court of California sustained the award as damages for a tort. Certiorari was again granted and the Supreme Court reversed, saying (at p.246 of 359 U. S.) : “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 opinion previously had quoted much of what was quoted above from Garner and, in addition, said (pp. 244-246 of 359 U. S.) : “When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. * * * ²⁴⁴ “At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections.

But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of this Court’s authority cannot remain within a State’s power and state jurisdiction too must yield to the exclusive primary competence of the Board. * * * In the absence of the Board’s clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction.” The Supreme Court has continued to follow faithfully the path it charted in the cases we have discussed. Marine Engineers Ben.