States’ Rights and Labor Law

May 16, 1955

A thoughtful, authoritative, carefully documented, and long overdue study has just been made by Gerard D. Reilly of States Rights and the Law of Labor Relations (Washington, D.C.: American Enterprise Association, $1).

Reilly is a Washington lawyer who has been Labor Department Solicitor and was a member of the National Labor Relations Board from 1941 to 1946. He begins by pointing out that “No aspect of labor law is in a state of greater confusion today than the power of the states to regulate labor-management relations.” This has gone to the point where “parties to labor disputes are frequently unable to learn until after months of costly litigation whether their rights to relief lie in state or Federal tribunals.”

There is one provision (Sec. 14 b) in the Taft-Hartley Act in which Congress did make a clear delegation of power to the states. This allows the states to forbid any kind of compulsory union membership contracts. Eighteen states have done so. The provision has recently become the subject of bitter debate. Yet it is not the only issue dividing states’ rights advocates from union leaders. Others include the authority of state courts to grant relief against secondary boycotts, jurisdictional strikes, and coercive union picketing.

The history of Federal and state relations in this field is ironic. Prior to 1937, when the Supreme Court sustained the constitutionality of the Wagner Act, it had been assumed in previous Supreme Court decisions that only the states had authority to regulate labor relations in manufacturing and mining industries, even though the products of these industries might enter the channels of interstate commerce. But once the Supreme Court decided that Congress did have the right to legislate in this field at all, it went on from decision to decision extending its interpretation of Federal power and correspondingly restricting its interpretation of state power until it arrived at the doctrine (in 1953) that when Congress passes a law on a matter within its jurisdiction it “pre-empts the field,” and deprives the states of jurisdiction over such matters regardless of whether their laws are “in coincidence with, as complementary to, or as in opposition to, Federal law.”

This and subsequent decisions have left the subject in legal confusion. Crucial provisions of state labor laws have been struck down whether or not they were in conflict with the Taft-Hartley Act. A sort of legal “no man’s land” has been created. The Federal government has no means of policing local strikes, or of preventing coercive mass picketing or outright violence; and the Taft-Hartley Act is practically blind to the existence of such matters. In fact, in past rulings of the National Labor Relations Board or of Federal courts, assaults by pickets or the throwing of rocks have been condoned or dismissed as “animal exuberance” or mere picket-line “scuffles.” Yet Federal-court decisions have thrown a fog of doubt around the power of the states and localities to control violence and coercive picketing.

Reilly’s statement of the case is moderate in tone, and his own legislative recommendations are also moderate. He believes that Section 14 (b) of the Taft-Hartley Act, which permits the states to enact right-to-work laws, should be preserved. And as the Federal government is not equipped to handle all labor-management problems (especially those concerned with mass picketing, sabotage, violence, etc.), he feels that the right to legislate in some of these matters should be reserved to the states and that Congress should clearly define “those areas which it intends to leave unregulated and those which it intends to leave to separate or concurrent regulation by the states.”

But the history and facts that Reilly so admirably presents raise questions that go much beyond his own recommendations. Does the Federal government, in fact, constitutionally actually have the sweeping powers of intrastate labor regulation that Supreme Court decisions of the last twenty years have awarded to it by their far-fetched reasoning?