author: Mr. Justice White

text:
    NATIONAL LABOR RELATIONS BOARD v. PLASTERERS’ LOCAL UNION NO. 79, OPERATIVE PLASTERERS’ & CEMENT MASONS’ INTERNATIONAL ASSN., AFL-CIO, et al.
    No. 70-63.
    Argued October 13, 1971
    Decided December 6, 1971

      Norton J. Come argued the cause for petitioner in No. 70-63. With him on the brief were Solicitor General Griswold, Richard B. Stone, Arnold Ordman, Dominick L. Manoli, and Marvin Roth. Wayne S. Bishop argued the cause and filed a brief for petitioners in No. 70-65.

      Donald J. Capuano argued the cause for respondents. With him on the brief were Martin F. O’Donoghue and Patrick C. O’Donoghue.

      Laurence Gold argued the cause for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. On the brief was Thomas E. Harris.

    Briefs of amici curiae urging reversal were filed by Joseph M. Stone, George L. Plumb, and Betty Southard Murphy for Associated General Contractors of America et al.; by Robert J. Connerton, Arthur M. Schiller, and Jules Bernstein for the Laborers’ International Union of North America, AFL-CIO; and by Albert E. Jenner, Jr., and Chester T. Kamin for the Scientific Apparatus Makers Assn.

      Louis Sherman and Elihu I. Leifer filed a brief for the Building and Construction Trades Department, AFL-CIO, as amicus curiae urging affirmance.

      Together with No. 70-65, Texas State Tile & Terrazzo Co., Inc., et al. v. Plasterers’ Local Union No. 79, Operative Plasterers’ & Cement Masons' International Assn., AFL-CIO, et al., also on certiorari to the same court.

   Mr. Justice White

delivered the opinion of the Court.

When a charge is filed under § 8 (b) (4) (D) of the National Labor Relations Act, as amended, the provision banning so-called jurisdictional disputes, the Board must under § 10 (k) “hear and determine the dispute out of which [the] unfair labor practice shall have arisen, unless . . . the parties to such dispute” adjust or agree upon a method for the voluntary adjustment of the dispute. The issue here is whether an employer, picketed to force reassignment of work, is a “party” to the “dispute” for purposes of § 10 (k). When the two unions involved, but not the employer, have agreed upon a method of settlement, must the Board dismiss the § 10 (k) proceedings or must it proceed to determine the dispute with the employer being afforded a chance to participate?

I

Texas State Tile & Terrazzo Co. (Texas State) and Martini Tile & Terrazzo Co. (Martini) are contractors in Houston, Texas, engaged in the business of installing tile and terrazzo. Both have collective-bargaining agreements with the Tile, Terrazzo and Marble Setters Local Union No. 20 (Tile Setters) and have characteristically used members of the Tile Setters union for laying tile and also for work described in the collective-bargaining contract as applying “a coat or coats of mortar, prepared to proper tolerance to receive tile on floors, walls and ceiling regardless of whether the mortar coat is wet or dry at the time the tile is applied to it.”

This case arose when Plasterers’ Local Union No. 79, Operative Plasterers’ and Cement Masons’ International Association of Houston, Texas (Plasterers), picketed the job sites of Texas State and Martini claiming that the work of applying the mortar to receive tile was the work of the Plasterers’ union and not of the Tile Setters. Neither Texas State nor Martini had a collective-bargaining contract with the Plasterers or regularly employed workers represented by that union.

Before the Texas State picketing began, the Plasterers submitted their claim to the disputed work to the National Joint Board for Settlement of Jurisdictional Disputes (Joint Board), a body established by the Building Trades Department, AFL-CIO, and by certain employer groups. Both the Plasterers’ and the Tile Setters’ locals were bound by Joint Board decisions because their international unions were members of the AFL-CIO’s Building Trades Department. Neither Texas State nor Martini had agreed to be bound by Joint Board procedures and decisions, however. The Joint Board found the work in dispute to be covered by an agreement of August 1917, between the two international unions, and awarded the work to the Plasterers. When Texas State and the Tile Setters refused to acquiesce in the Joint Board decision and change the work assignment, the Plasterers began the picketing of Texas State which formed the basis for the § 8 (b) (4) (D) charges. The Plasterers also picketed a jobsite where Martini employees, members of the Tile Setters, were installing tile, although this dispute had not been submitted to the Joint Board.

Martini and Southwestern Construction Co., the general contractor that had hired Texas State, filed § 8 (b) (4) (D) unfair labor practice charges against the Plasterers, and the NLRB’s Regional Director noticed a consolidated § 10 (k) hearing to determine the dispute. Southwestern, Texas State, Martini, and the two unions participated in the hearing. A panel of the Board noted that the Tile Setters admitted being bound by Joint Board procedures, but deemed the Joint Board decision to lack controlling weight, and “after taking into account and balancing all relevant factors” awarded the work to the Tile Setters. When the Plasterers refused to indicate that they would abide by the Board’s award, a § 8 (b) (4) (D) complaint was issued against them, and they were found to have committed an unfair labor practice by picketing to force Texas State and Martini to assign the disputed work to them. In making both the § 10 (k) and § 8 (b) (4) (D) decisions, the Board rejected the Plasterers’ contention that even though the employer had not agreed to be bound by the Joint Board decision, the provisions of § 10 (k) precluded a subsequent Board decision because the competing unions had agreed upon a voluntary method of adjustment.

On petition to review by the Plasterers and cross petition to enforce by the Board, a divided panel of the Court of Appeals set aside the order of the Board. It held that: “It is not the employer but the rival unions (or other employee groups) who are the parties to the jurisdictional dispute contesting which employees are entitled to seek the work in question.” It concluded that the Board may not make a § 10 (k) determination of a jurisdictional dispute where the opposing unions have agreed to settle their differences through binding arbitration. Both the Board and the employers petitioned for certiorari, and we granted the petitions.

II

Section 8 (b) (4) (D) makes it an unfair labor practice for a labor organization to strike or threaten or coerce an employer or other person in order to force or require an employer to assign particular work to one group of employees rather than to another, unless the employer is refusing to honor a representation order of the Board. On its face, the section would appear to cover any union challenge to an employer work assignment where the prohibited means are employed. NLRB v. Radio & Television Broadcast Engineers Union, Local 1212, 364 U. S. 573, 576 (1961) (hereinafter CBS). As the charging or intervening party, the employer would normally be a party to any proceedings under that section. Section 8 (b) (4) (D), however, must be read in light of § 10 (k) with which it is interlocked. CBS, supra, at 576. When a § 8 (b) (4) (D) charge is filed and there is reasonable cause to believe that an unfair labor practice has been committed, issuance of the complaint is withheld until the provisions of § 10 (k) have been satisfied. That section directs the Board to “hear and determine” the dispute out of which the alleged unfair labor practice arose; the Board is required to decide which union or group of employees is entitled to the disputed work in accordance with acceptable, Board-developed standards, unless the parties to the underlying dispute settle the case or agree upon a method for settlement. Whether the § 8 (b) (4) (D) charge will be sustained or dismissed is thus dependent on the outcome of the § 10 (k) proceeding. The Board allows an employer to fully participate in a § 10 (k) proceeding as a party. If the employer prefers the employees to whom he has assigned the work, his right to later relief against the other union’s picketing is conditioned upon his ability to convince the Board in the § 10 (k) proceeding that his original assignment is valid under the criteria employed by the Board.

The alleged unfair labor practice in this- cause was the picketing of the jobsites by the Plasterers, and the dispute giving rise to this picketing was the disagreement over whether Plasterers or Tile Setters were to lay the final plaster coat. This dispute was a three-cornered one. The Plasterers made demands on both Texas State and the Tile Setters and on both Martini and the Tile Setters. In both cases, the employers’ refusal to accede to the Plasterers’ demands inevitably and inextricably involved them with the Tile Setters against the Plasterers. It was this triangular dispute that the § 10 (k) proceeding was intended to resolve.

It may be that in some cases employers have no stake in how a jurisdictional dispute is settled and are interested only in prompt settlement. Other employers, as shown by this cause, are not neutral and have substantial economic interests in the outcome of the § 10 (k) proceeding. A change in work assignment may result in different terms or conditions of employment, a new union to bargain with, higher wages or costs, and lower efficiency or quality of work. In the construction industry, in particular, where employers frequently calculate bids on very narrow margins, small cost differences are likely to be extremely important. In the present cause, both employers had collective-bargaining contracts with the Tile Setters specifically covering the work at issue; neither had contracts with the Plasterers nor employed Plasterers regularly. Both employers determined it to be in their best interests to participate vigorously in the Board’s § 10 (k) proceeding. The employers contended it was more efficient and less costly to use the same craft for applying the last coat of plaster, putting on the bonding coat, and laying the tile and that it was more consistent with industry practice to use the Tile Setters as they did. Both companies claimed that their costs would be substantially increased if the award went to the Plasterers, and that without collective-bargaining contracts with the Plasterers, they would lose 30%-40% of their work to plastering contractors. It is obvious, therefore, that both Texas State and Martini had substantial stakes in the outcome of the § 10 (k) proceeding.

The phrase “parties to the dispute” giving rise to the picketing must be given its commonsense meaning corresponding to the actual interests involved here. Cf. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Local 286 v. Scofield, 382 U. S. 205, 220 (1965). Section 10 (k) does not expressly or impliedly deny party status to an employer, and since the section’s adoption in 1947, the Board has regularly accorded party status to the employer and has refused to dismiss the proceeding when the unions, but not the employer, have agreed to settle.

The Court of Appeals rejected this construction of § 10 (k). Its reasoning, which we find unpersuasive, was that because the employer is not bound by the § 10 (k) decision, he should have no right to insist upon participation. But the § 10 (k) decision standing alone, binds no one. No cease-and-desist order against either union or employer results from such a proceeding; the impact of the § 10 (k) decision is felt in the § 8 (b) (4) (D) hearing because for all practical purposes the Board’s award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10 (k) decision against it, a § 8 (b) (4) (D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10 (k) decision and the employer does not comply, the employer’s § 8 (b) (4) (D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the § 10 (k) decision, but both will lose their § 8 (b) (4) (D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board’s decision. This is the design of the Act; Congress provided no other way to implement the Board’s § 10 (k) decision.

We do not find that the legislative history of § 8 (b) (4) (D) and § 10 (k) requires a different conclusion. The Court of Appeals and the Plasterers rely upon various statements in the legislative history of the two sections, particularly the remarks of Senator Morse, referring to jurisdictional disputes as controversies between two labor unions, and a passage in the House Conference Report referring to § 10 (k) as directing the Board to "hear and determine disputes between unions giving rise to unfair labor practices under section 8 (b)(4)(D).” Nothing in these remarks or in the other relevant legislative documents indicates an affirmative intent to exclude an interested employer from participating in a § 10 (k) proceeding. The usual focus of the legislative debates was on ways of protecting the employer from the economic havoc of jurisdictional strikes. But it does not follow from statements condemning the economically deleterious effects of inter-union strife that Congress intended an employer to have no say in a decision that may, practically, affect his business in a radical way. Congress did not expressly focus on the non-neutral employer, but there is nothing in the legislative history that negatives employer standing; and in referring to the “parties to the dispute,” Congress used terminology that would ordinarily include the employer in cases such as these.

The Court has frequently cautioned that “[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.” Girouard v. United States, 328 U. S. 61, 69 (1946); Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U. S. 235, 241 (1970). It is clear that Congress intended to protect employers and the public from the detrimental economic impact of “indefensible” jurisdictional strikes. It would therefore be myopic to transform a procedure that was meant to protect employer interests into a device that could injure them. In the absence of an “unmistakable directive,” the Court has refused to construe legislation aimed to protect a certain class in a fashion that will run counter to the goals Congress clearly intended to effectuate. FTC v. Fred Meyer, Inc., 390 U. S. 341, 349 (1968). We conclude, therefore, that these sections were enacted to protect employers who are partisan in a jurisdictional dispute as well as those who are neutral.

Nothing in CBS, supra, mandates a different conclusion. Until that case, the Board's practice had been to decide against the striking or picketing union unless it was entitled to the work pursuant to a Board certification or a collective-bargaining contract. The Court found the Board to have taken too narrow a view of its task and held that the Board, employing broader, more inclusive criteria with respect to entitlement, must make an affirmative award to one union or the other. In the course of its opinion, the Court referred to § 10 (k)’s phrase “the dispute out of which such unfair labor practice shall have arisen” as having “no other meaning except a jurisdictional dispute under § 8 (b) (4) (D) which is a dispute between two or more groups of employees over which is entitled to do certain work for an employer.” 364 U. S., at 579. Again, we have no quarrel with the view that § 10 (k) is designed to decide which union is entitled to the work. But the issue before us is whether the employer is also a party to that dispute and to the proceeding that decides that question. The Court in CBS did not have before it a case in which the employer was particularly interested in which union did the work, since it had collective-bargaining contracts with both unions and since both unions were able to do the disputed work with equal skill, expense, and efficiency. The Court recognized that there, “as in most instances” the quarrel was of “so little interest to the employer that he seems perfectly willing to assign work to either [union] if the other will just let him alone.” Ibid. (emphasis added). We have no doubt, therefore, that the Court had no intention of deciding the case now before us.

If employers must be considered parties to the dispute that the Board must decide under § 10 (k), absent private agreement, they must also be deemed parties to the adjustment or agreement to settle that will abort the § 10 (k) proceedings. It is insisted that so holding will encourage employers to avoid private arbitration, whereas holding union agreement alone sufficient to foreclose Board action will pressure employers to become part of private settlement mechanisms productive of sound result and much swifter decision.

The difficulties with this argument are several. First of all, if union agreements to arbitrate are sufficient to terminate § 10 (k) proceedings, there is no assurance that these private procedures will always be open to employer participation, that an employer will be afforded a meaningful chance to participate, or that all relevant factors will be properly considered.

Second, the argument for regarding the employer as a dispensable neutral is reminiscent of the position taken by the Board and rejected by the Court in the CBS case. There, the Board sought to justify a narrow view of its function and its failure to make affirmative awards as generating pressure to settle or arbitrate privately. As § 10 (k) passed the Senate, it directed the Board to decide the dispute or to order arbitration, but the arbitration alternative was deleted in Conference, and the amended bill was passed by the Senate over the strenuous objections of Senator Morse and others. By this amendment, the Court in CBS held that Congress had expressed a clear preference for Board decision as compared with compelled arbitration, and that this policy preference must be respected. 364 U. S., at 581-582. Although this Court has frequently approved an expansive role for private arbitration in the settlement of labor disputes, this enforcement of arbitration agreements and settlements has been predicated on the view that the parties have voluntarily bound themselves to such a mechanism at the bargaining table. In both Carey v. Westinghouse Electric Corp., 375 U. S. 261, 262 (1964) and Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U. S., at 238, the employers had acceded to binding arbitration as the terminal step of the grievance procedure. This concession is not present in the instant case; the employers here did not even have a collective-bargaining contract with the Plasterers. Section 10 (k) contemplates only a voluntary agreement as a bar to a Board decision. As in CBS, we decline to narrow the Board's powers under § 10 (k) so that employers are coerced to accept compulsory private arbitration when Congress has declined to adopt such a policy.

There remains the matter of the so-called Safeway rule announced by the Board in 1962 and followed since. Under this rule, the Board has held that if one of the unions claiming work effectively renounces its claim, § 10 (k) proceedings are aborted despite legitimate interests an employer may have in securing a Board decision. It is urged that if union agreement prevents a § 10 (k) decision in such a situation, the employer cannot be considered a party to the § 10 (k) dispute when the unions but not the employer have agreed upon a method of settlement. As we understand the Safeway doctrine, however, when one union disclaims the work, § 10 (k) proceedings terminate, not because all “parties” to the dispute have settled or agreed to settle within the meaning of the statute, but on the ground that, in the words of the Board’s brief in this case, “the Board has power, under Section 10 (k), only to hear and determine the merits of a jurisdictional dispute and ... by definition, such a dispute cannot exist unless there are rival claims to the work. . . .” Concededly, an employer may be a third party to disputes over work assignments, but when the other two parties settle their differences and one union declines the work assigned to it, the inter-union conflict that §§ 8 (b) (4) (D) and 10 (k) were designed to eliminate disappears. A § 10 (k) hearing is a comparative proceeding aimed at determining which union is entitled to perform certain tasks. Its function evaporates when one of the unions renounces and refuses the work. Similarly, the applicability of § 8 (b) (4) (D) is premised on conflicting claims of unions or groups of employees for the same job; absent such an actual conflict, it would be futile to proceed under that section unless the employer replaces the disclaiming employees by a new third group of employees when they reject the work assignment, and the disfavored union resumes picketing.

If union settlement followed by disclaimer ends the § 10 (k) case, some of the argument about the employer’s party status becomes academic; for whether the employer is a party or not, the two unions alone can prevent a Board decision. But recognizing the employer’s party status insures his right to participate when the unions do not agree and the Board must come to a decision. Further, the Board’s Safeway rule applies only where the inter-union conflict is effectively settled and the employer no longer faces conflicting claims to the work. As this case demonstrates, the Board does not apply the Safeway rule to unimplemented agreements to arbitrate between the unions alone, and it does not consider it applicable where employees continue on the job after their international union loses an arbitration proceeding and renounces the work. These de facto disputes are real, and they deserve Board resolution if the purposes of § 10 (k) are to be .achieved. Cf. CBS, supra, at 579-580.

The Court of Appeals would extend the Safeway rule to foreclose Board decision where the two unions, but not the employer, have agreed to arbitrate; inter-union agreement was deemed equivalent to effective disclaimer by one of the unions. This view ignores the narrow view the Board has taken of the Safeway rule. It also fails to recognize the problem arising where a local union or group of employees continues to do work assigned by the employer despite agreement or disclaimer by their parent body. It makes little difference to the picketing union that there has been a “settlement” or an agreed-upon method of deciding the dispute as long as it is barred from enjoying the results of such a theoretical resolution. In the instant case, the Board held a § 10 (k) hearing for the simple reason that a live unresolved jurisdictional dispute between unions and employer in fact existed.

Our conclusion evinces no hostility to voluntary settlement of disputes and is wholly consistent with federal policy with respect to voluntary arbitration. In other contexts, where challenged conduct poses an arbitrable dispute under a collective-bargaining contract but is also an unfair labor practice within the jurisdiction of the Board, the Board will, as a matter of policy, defer to the arbitral settlement, although it is not bound to do so by the LMRA. See 29 U. S. C. § 160 (a); Carey v. Westinghouse Electric Corp., 375 U. S., at 272; NLRB v. Strong, 393 U. S. 357, 360-361 (1969); NLRB v. Acme Industrial Co., 385 U. S. 432, 438 (1967). Although the Board is not statutorily required to honor arbitration awards in such situations, it often defers to them if the arbitrator has considered the alleged unfair labor practice. Spielberg Mfg. Co., 112 N. L. R. B. 1080 (1955); International Harvester Co., 138 N. L. R. B. 923 (1962), enforced sub nom. Ramsey v. NLRB, 327 F. 2d 784 (CA7 1964). But again, such deference is in the context of voluntary arbitration. In the case before us, the LMRA requires that the Board defer only when all of the parties have agreed on a method of settlement; when there has been such an agreement, the Board cannot ignore or override the result of that settlement procedure. In the present cause, however, it is claimed the Board must defer when less than all the parties to the dispute have agreed to arbitrate.

Reversed.

       61 Stat. 136, 29 U. S. C. § 141 et seq.

       Section 8 (b) (4) provides that it shall be an unfair labor practice for a labor organization or its agents “(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
      “(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.” 29 U. S. C. §158 (b)(4).
      Section 10 (k) provides:
      “Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158 (b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.” 29 U. S. C. § 160 (k).

       App. 20.

       This dispute grew out of a new method of applying tile that was developed in the mid-1950’s. R. 111, 123, 135.

       The National Joint Board for the Settlement of Jurisdictional Disputes is an arbitration panel established by a 1948 agreement between the Building and Construction Trades Department, AFL-CIO, and the Associated General Contractors of America and several specialty contractors’ associations. The Joint Board consists of an equal number of representatives of employers and unions and a neutral chairman. An employer may become a party to a Joint Board proceeding by signing a stipulation agreeing to be bound by the results of the proceeding. Art. III, § 7, AFL-CIO, Bldg. & Constr. Trades Dept., Plan for Settling Jurisdictional Disputes Nationally and Locally 10 (1970). Member unions of the AFL-CIO’s Building Trades Department do not have to agree formally to abide by Joint Board decisions, because they are bound by virtue of provisions contained in their constitutions. AFL-CIO, Bldg. & Constr. Trades Dept., Procedural Rules and Regulations of the National Joint Board 2 (1970). See generally K. Strand, Jurisdictional Disputes in Construction: The Causes, the Joint Board, and the NLRB 89-104 (1961). In the cases here, both the Tile Setters and the Plasterers were members of the Building Trades Department.

       In the Texas State case, the Joint Board on November 9, 1966, awarded all of the disputed work to the Plasterers except “any coat to be applied wet the same day under tile.” App. 316. The Tile Setters refused to give up the work of laying the plaster undercoat to which the dry mortar was applied, claiming that the Joint Board decision gave this work to them. The Plasterers established a picket line on January 24, 1967; on March 15, 1967, the Joint Board issued a clarification of its decision, stating that the final smooth plaster coat was to be done by the Plasterers unless it was laid the same day as the tile and dry-set mortar were applied, in which case it was to be done by the Tile Setters. App. 341.

       The employer-subcontractor, Texas State, intervened as a party.

       App. 22.

       The NLRB considered the collective-bargaining agreements among the parties, industry and area practice, relative skills and efficiency of operation, past practices of the employers, agreements between the Plasterers and the Tile Setters, the Joint Board award (the NLRB refused to give this controlling weight because of its “ambiguous nature,” App. 22), and concluded:
      “Tile setters are at least as skilled in the performance of the work as plasterers, and both Texas Tile and Martini, which assigned them to the work, have been satisfied with both the quality of their work and the cost of employing them. Moreover, the instant assignments of the disputed work to tile setters are consistent with the explicit provisions of the collective-bargaining agreement between the Tile Setters and Texas Tile and Martini, are consistent with the past practice of the Employers, and are not inconsistent with area or industry practice. . . .” App. 23. The Board’s decision in the § 10 (k) proceeding is reported at 167 N. L. R. B. 185 (1967) and its decision and order in the unfair labor practice proceeding are reported at 172 N. L. R. B. Nos. 70, 72 (1968).

       The § 10 (k) determination is not binding as such even on the striking union. If that union continues to picket despite an adverse § 10 (k) decision, the Board must prove the union guilty of a § 8 (b) (4) (D) violation before a cease-and-desist order can issue. The findings and conclusions in a § 10 (k) proceeding are not res judicata on the unfair labor practice issue in the later § 8 (b) (4) (D) determination. International Typographical Union, 125 N. L. R. B. 759, 761 (1959). Both parties may put in new evidence at the § 8 (b) (4) (D) stage, although often, as in the present cases, the parties agree to stipulate the record of the § 10 (k) hearing as a basis for the Board’s determination of the unfair labor practice. Finally, to exercise its powers under § 10 (k), the Board need only find that there is reasonable cause to believe that a § 8 (b) (4) (D) violation has occurred, while in the § 8 (b) (4) (D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated § 8 (b) (4) (D). International Typographical Union, supra, at 761 n. 5 (1959).

       142 U. S. App. D. C. 146, 440 F. 2d 174 (1970).

        Id., at 152, 440 F. 2d, at 180. Although the dispute at the Martini worksite had not been submitted to the Joint Board, the Court of Appeals nevertheless held that, because the two unions had agreed to be bound by the procedures and decisions of the Joint Board, the NLRB was precluded from hearing and determining the Martini dispute under § 10 (k).

       401 U. S. 973 (1971).

       See 29 CFR §§ 102.8, 102.9, 102.109 (1971); International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Local 283 v. Scofield, 382 U. S. 205, 219-221 (1965).

       See Comment, The Employer as a Necessary Party to Voluntary Settlement of Work Assignment Disputes Under Section 10 (k) of the NLRA, 38 U. Chi. L. Rev. 389, 400 (1971).

       R. 96-97, 130-132, 141.

       R. 95, 129, 145-148.

       See, e. g., Lodge 68 of the Int’l Assn. of Machinists (Moore Drydock Co.), 81 N. L. R. B. 1108, 1113-1114, 1126-1128 (1949); Local 231, Int’l Hod Carriers (Middle States Telephone Co.), 91 N. L. R. B. 598, 604 (1950); United Brotherhood of Carpenters, Local 581 (Ora Collard), 98 N. L. R. B. 346, 348-349 (1952); United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, 108 N. L. R. B. 186, 197 (1954); Bay Counties District Council of Carpenters, 115 N. L. R. B. 1757, 1766-1767 (1956); Local 173, Wood, Wire, & Metal Lathers’ Int’l Union (Newark & Essex Plastering Co.), 121 N. L. R. B. 1094, 1103-1104 (1958); Int’l Union of Operating Engineers (Schwerman Co. of Pa., Inc.), 139 N. L. R. B. 1426, 1429 (1962); Carpenters District Council of Denver (J. O. Veteto & Son), 146 N. L. R. B. 1242, 1245 (1964); Electrical Workers, Local 26 (McCloskey & Co.), 147 N. L. R. B. 1498, 1501-1503 (1964); Operative Plasterers Int’l Assn. (Twin City Tile & Marble Co.), 152 N. L. R. B. 1609, 1611, 1615 (1965); Int’l Union of Operating Engineers, Local 49 (Egan-McKay Electrical Contractors, Inc.), 164 N. L. R. B. 672, 673 (1967). The Board has reasserted this view since the Court of Appeals’ decision in the instant case, Lathers Local 104 (Blaine Petty Co.), 186 N. L. R. B. No. 70 (1970). Until now, courts of appeals have uniformly upheld the Board’s position; see, e. g., New Orleans Typographical Union No. 17 v. NLRB, 368 F. 2d 755, 763 (CA5 1966), NLRB v. Local 825, Int’l Union of Operating Engineers, 326 F. 2d 213, 216 (CA3 1964); Local 450, Int’l Union of Operating Engineers v. Elliott, 256 F. 2d 630, 636 (CA5 1958). See also Carey v. Westinghouse Electric Corp., 375 U. S. 261, 264 (1964), citing Wood, Wire & Metal Lathers Int’l Union (Acoustical Contractors Assn.), 119 N. L. R. B. 1345, 1347 (1958).

       This dismissal will not be pursuant to the language of § 10 (k) directing dismissal upon “compliance by the parties . . . with the [Board’s] decision” but, rather, under § 8 (b) (4) (D) because the “employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.” Apparently, the Board construes this language to include disregarding a § 10 (k) decision. Brief for the NLRB 23 n. 16, 28 n. 21. The Board’s regulations now provide that'“if the Board determination is that employees represented by a charged union are entitled to perform the work in dispute, the regional director shall dismiss the charge as to that union irrespective of whether the employer has complied with that determination.” 36 Fed. Reg. 9133 (1971).

       93 Cong. Rec. 1845. Cf. also 93 Cong. Rec. 1824 (remarks of Sen. Morse).

       H. R. Conf. Rep. No. 510 on H. R. 3020, 80th Cong., 1st Sess., 57 (1947).

       See, e. g., 93 Cong. Rec. A1222-A1223 (remarks of Cong. Landis); 93 Cong. Rec. 3424 (remarks of Cong. Hartley); 93 Cong. Rec. 3227-3228 (remarks of Sen. Lucas); 93 Cong. Rec. 4860-4862 (remarks of Sen. Aiken); 93 Cong. Rec. A2251-A2253 (remarks of Sen. Ball). Section 10 (k) protection was also extended to unorganized employees. In the Senate bill, § 8 (b) (4) (D) covered only eases where two unions claimed the same work, but the section was broadened in the Conference Committee to cover conflicts between organized and unorganized employees. See CBS, 364 U. S., at 584.

       In what is apparently the only time employer participation in the resolution of jurisdictional disputes was explicitly considered, Senator Taft indicated that the employer should be a party to the proceeding:
      “Mr. MoRREale [General Counsel, International Hodcarriers, Building, and Common Laborers of America]. ... I do not think [compulsory arbitration between the antagonistic unions] should be just by labor itself, but that it should be in combination with industry, because in all those matters, the employers are affected and interested, as well as is labor. I think that the procedure set up should provide for a joint procedure between management and labor.
      “The CHAIRMAN [Sen. Taft], ... I have no objection to giving both to labor and management the right to arbitrate or address themselves to arbitrating the question.”
      Hearings on S. 55 before the Senate Committee on Labor and Public Welfare, 80th Cong., 1st Sess., pt. 3, p. 1467 (1947).
      The arbitration provision in the Senate version of § 10 (k) was deleted without explanation in Conference. See n. 27, infra.

       In construing a statute, the Court has ruled that legislative materials, if “without probative value, or contradictory, or ambiguous,” should not be permitted to control the customary meaning of words. United States v. Dickerson, 310 U. S. 554, 562 (1940). See also Gemsco, Inc. v. Walling, 324 U. S. 244, 260 (1945).
      The Court has previously had occasion to construe the term “party” in the National Labor Relations Act, and it has given it a broad and realistic definition. In Lewis v. NLRB, 357 U. S. 10 (1958), the issue was whether the Board’s General Counsel was a “party” who could apply to the Board for the issuance of a subpoena. The General Counsel had obtained subpoenas duces tecum and ad testificandum to both an employer and a union after an unfair labor practice complaint had been issued; at the hearing on the complaint, the employer and union had moved to revoke the subpoenas on the ground that the General Counsel was not a “party” for purposes of § 11 (1) of the Act which provides that: “The Board, or any member thereof, shall upon application of any party . . . forthwith issue . . . subpoenas . . . .”
      The Court noted that the Act does not define the term “party,” but it emphasized that the role of the General Counsel was a “major one” in unfair labor practice proceedings. 357 U. S., at 15. The General Counsel was held to be a party because he was “indispensable to the prosecution of the case” and because relegating him to a lesser status would “overlook the critical role he performs in enforcement of the Act.” 357 U. S., at 16. This description is equally applicable to an employer’s function in a § 8 (b) (4) (D) proceeding. In International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Local 288 v. Scofield, 382 U. S. 205 (1965), the Court went through a somewhat similar analysis of the substantive interests involved at the judicial enforcement stage of an unfair labor practice proceeding, and concluded that a successful “charged” or “charging” party before the Board had a right to intervene in the ensuing Court of Appeals action.
      Excluding the employer from participation as a party is inconsistent with the common-law rule that “all persons materially interested in the result of a suit ought to be made parties, so that the court may ... ‘do complete justice.’ ” Vetterlein v. Barnes, 124 U. S. 169, 170-171 (1888). Story v. Livingston, 13 Pet. 359, 375 (1839).

       President Truman, 1947 State of the Union Message, 93 Cong. Rec. 136.

       The Board has stated its guidelines for resolving jurisdictional disputes:
      “The Board will consider all relevant factors in determining who is entitled to the work in dispute, e. g., the skills and work involved, certifications by the Board, company and industry practice, agreements between unions and between employers and unions, awards of arbitrators, joint boards, and the AEL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer’s business. This list of factors is not meant to be exclusive, but is by way of illustration. . . . Every decision will have to be an act of judgment based on common sense and experience rather than on precedent.” Int’l Assn. of Machinists, Lodge 1748 (J. A. Jones Construction Co.), 135 N. L. R. B. 1402, 1410-1411 (1962).
      The Joint Board award in this case was based solely on the Joint Board’s interpretation of a 1917 agreement between the two international unions and a 1924 decision interpreting that agreement. R. 53, 69-70, 73-76. At the time of the dispute, the criteria used by the Joint Board in making awards were: “Decisions and agreements of record as set forth in the Green Book [the Building Trades Department’s book of precedents], valid agreements between affected International Unions attested by the Chairman of the Joint Board, established trade practice and prevailing practice in the locality.” Art. III, § 1 (a), AFL-CIO Bldg. & Constr. Trades Dept., Plan for Settling Jurisdictional Disputes Nationally and Locally (1965). These criteria were broadened in 1970 by the addition of Art. III, § 1 (f), which provides: “Because efficiency, cost and good management are essential to the well-being of the industry, the Joint Board should not ignore the interests of the consumer in settling jurisdictional disputes.” AFL-CIO Bldg. & Constr. Trades Dept., Plan for Settling Jurisdictional Disputes Nationally and Locally 8 (1970).

       93 Cong. Rec. 6452-6453 ; 93 Cong. Rec. 6519 (remarks of Sen. Pepper).

         Highway Truckdrivers, Local 107 (Safeway Stores, Inc.), 134 N. L. R. B. 1320 (1961).

        Int’l Assn. of Bridge Workers, Local 678 (W. R. Aldrich & Co.), 145 N. L. R. B. 943 (1964); Carpet, Linoleum & Soft Tile Layers, Local 1905 (Butcher & Sweeney Construction Co.), 143 N. L. R. B. 251 (1963); Wood, Wire & Metal Lathers Union, Local 328 (Acoustics & Specialties, Inc.), 139 N. L. R. B. 598 (1962).

       Brief for NLRB 30 n. 23. In a case interpreting the Safeway doctrine, the Board stated that § 10 (k) is limited "to situations involving competing claims between rival groups of employees, and [was] not designed to require the Board to arbitrate a dispute between a union and an employer when no . . . competing claims [of another union] are involved." Carpet, Linoleum & Soft Tile Layers, Local 1905 (Butcher & Sweeney Construction Co.), 143 N. L. R. B. 251, 255-256 (1963) (emphasis in original).

        Carpenters Local 1849 v. C. J. Montag & Sons, Inc., 335 F. 2d 216, 221 (CA9 1964); Bldg. and Construction Trades Council of Las Vegas, Local 525 (Charles J. Dorfman), 173 N. L. R. B. 1339 (1968). The Board has also held that a union cannot avoid a § 10 (k) determination by a disclaimer of interest in presently representing the employees in question, United Mine Workers (Turman Construction Co.), 136 N. L. R. B. 1068 (1962), and it has ignored exphert disclaimers when it has questioned a representative’s authority to disclaim work, Millwrights’ Local 1113 (Brogdex Co.), 157 N. L. R. B. 996, 1002 (1966). See also Local 1291, Int’l Longshoremen’s Assn. (Pocahontas Steamship Co.), 152 N. L. R. B. 676 (1965), enforced, 368 F. 2d 107 (CA3 1966), cert. denied, 386 U. S. 1033 (1967); Bricklayers’ Local 2, 152 N. L. R. B. 278, 282 (1965); Bldg. and Construction Trades Council of Las Vegas, Local 525 (Charles J. Dorfman), supra (1968).


source: Caselaw Access Project

author: MR. Justice Douglas Mr. Justice White,

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD v. NASH-FINCH CO., dba JACK & JILL STORES
    No. 70-93.
    Argued October 19, 1971
    Decided December 8, 1971

      Lawrence G. Wallace argued the cause for petitioner. On the briefs were Solicitor General Griswold, Peter L. Strauss, Dominick L. Manoli, Norton J. Come, and Peter G. Nash.

      William A. Harding argued the cause for respondent pro hac vice. With him on the brief was Richard P. Nelson.

      Solomon I. Hirsh filed a brief for the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as amicus curiae urging reversal.

      Milton A. Smith, Jerry Kronenberg, and Gerard C. Smetana filed a brief for the Chamber of Commerce of the United States as amicus curiae urging affirmance.
   MR. Justice Douglas

delivered the opinion of the Court.

Title 28 U. S. C. § 2283 provides;

“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

The question is whether the National Labor Relations Board may, through proceedings in a federal court, enjoin a state court order which regulates peaceful picketing governed by the federal agency. The District Court rejected the Board's contention that it is within the exception to § 2283, recognized in Leiter Minerals, Inc. v. United States, 352 U. S. 220, as respects suits brought by the United States. The Court of Appeals affirmed. 434 F. 2d 971. The ease is here on a petition for a writ of certiorari which we granted, 402 U. S. 928.

When a union began organizing employees of certain stores in Grand Island, Nebraska, the union filed unfair labor practice charges against the company. The General Counsel issued a complaint. A hearing was held and a Trial Examiner sustained the complaint and recommended that the company cease and desist. Shortly thereafter and before the Board had acted, the union picketed the stores. The company thereupon petitioned the Nebraska state court for an injunction. The state court issued a restraining order, limiting the pickets to two at each store, enjoining them from blocking or picketing entrances or exits and from distributing literature pertaining to the dispute which would halt or slow trafile, from instigating conversations with customers in any manner relating to the dispute, from mass picketing, from acts of physical coercion against persons driving to work, and from doing any act in violation of Neb. Rev. Stat. § 28-812, which makes unlawful “loitering about, picketing or patrolling the place of work . . . against the will of such person.” The injunction also bans anyone other than a bona fide union . member from picketing unless he becomes a defendant in the state proceedings. Finally, the injunction bars anyone, other than pickets and named defendants, from picketing, distributing handbills, or otherwise “caus[ing] to be published or broadcast any information pertaining to the dispute . . . between the parties.”

Later the Board entered its decision and order accepting in part the Trial Examiner’s recommendations and rejecting parts not material to the present controversy.

The Board then filed this suit in the Federal District Court seeking to restrain the enforcement of the state court injunction on the ground that it regulated conduct which was governed exclusively by the National Labor Relations Act. As noted, both the District Court and the Court of Appeals denied the Board relief. The Court of Appeals held that for the purposes of § 2283 the Board is “an administrative agency of the United States, and is not the United States.” 434 F. 2d, at 975. Congress from the beginning has restricted the authority of the federal judiciary to interfere with state court actions. See Younger v. Harris, 401 U. S. 37, 43-44. The present § 2283 is a revision of earlier provisions of federal statutes which were construed to allow within limits such federal injunctions in favor of federal agencies. Bowles v. Willingham, 321 U. S. 503, 510. Any exception in favor of federal agencies must, however, be “implied,” ibid., unless it comes within the exceptions stated in §2283.

It is suggested that this federal injunction was “in aid” of the jurisdiction of the federal court since the suit is in the District Court by reason of 28 U. S. C. § 1337 which grants jurisdiction over “any civil action or proceeding arising under any Act of Congress regulating commerce.” In Capital Service, Inc. v. NLRB, 347 U. S. 501, an employer invoked the aid both of a state court and of the federal Board against picketing. The Board sought a federal court injunction under § 10 (1) of the Act, 29 U. S. C. § 160 (l), which specifically allows it wherever an unfair labor practice respecting a secondary boycott or picketing violative of § 8 (b) (4) or § 8 (b) (7) of the Act is involved. We ruled that the state injunction “restrains conduct which the District Court was asked to enjoin in the § 10 (1) proceeding.” Id., at 505. We held that under those circumstances an injunction by the federal court was “necessary in aid of its jurisdiction” over commerce, because the federal court to exercise its jurisdiction “freely and fully” must “first remove the state decree.” Id., at 506.

In the instant case the company did not file any charges with the Board which claimed that the union’s picketing violated §8 (b)(4) or §8 (b)(7) of the Act, 73 Stat. 542 and 544, 29 U. S. C. § 158 (b) (4) and § 158 (b)(7).

Section 10 (j) gives the District Court similar authority in respect of an unfair labor practice of the employer under § 8 (a)(1) of the Act which protects the right of employees to organize. But a resort to court action, the Board has held, does not violate § 8 (a)(1). See Clyde Taylor Co., 127 N. L. R. B. 103, 109.

The action in the instant case does not seek an injunction to restrain specific activities upon which the Board has issued a complaint but is based upon the general doctrine of pre-emption. We therefore do not believe this case falls within the narrow exception contained in § 2283 for matters “necessary in aid of its jurisdiction.” There is in the Act no express authority for the Board to seek injunctive relief against pre-empted state action. The question remains whether there is implied authority to do so.

It has long been held that the Board, though not granted express statutory remedies, may obtain appropriate and traditional ones to prevent frustration of the purposes of the Act. We held in In re National Labor Relations Board, 304 U. S. 486, 496, that even in the absence of an express statutory remedy, the Board might petition for writ of prohibition against premature invocation of the review jurisdiction of the Court of Appeals. In Amalgamated Workers v. Edison Co., 309 U. S. 261, we held that the Board had implied authority to institute contempt proceedings for violation of court decrees enforcing orders of the Board. In Nathanson v. NLRB, 344 U. S. 25, we found an implied authority of the Board to file claims in bankruptcy covering the sums included in its back-pay awards. The claims were not given priority under § 64 (a) (5) of the Bankruptcy Act, but this was because “the United States [was] collecting for the benefit of a private party,” id., at 28, not as suggested, post, at 149, because the Board’s juridical status was something less than that of the United States.

We conclude that there is also an implied authority of the Board, in spite of the command of § 2283, to enjoin state action where its federal power pre-empts the field. Our starting point is contained in the observation of Mr. Chief Justice Hughes in Amalgamated Workers v. Edison Co., supra, at 265.

“The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce.”

The purpose of the Act was to obtain “uniform application” of its substantive rules and to avoid the “diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.” Garner v. Teamsters Union, 346 U. S. 485, 490. The federal regulatory scheme (1) protects some activities, though not violence (see United Mine Workers v. Gibbs, 383 U. S. 715, 729-731), (2) prohibits some practices, and (3) leaves others to be controlled by the free play of economic forces. We said in Garner v. Teamsters Union, supra, at 500:

“For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits.”

In Leiter Minerals, Inc. v. United States, 352 U. S. 220, a state suit over mineral rights in public lands was pending, the parties being private persons. The United States brought suit in the federal court to quiet title to the mineral rights and sought and obtained a federal injunction against prosecution of the state proceedings. In holding that § 2283 impliedly allowed such an exception we said:

“The statute is designed to prevent conflict between federal and state courts. This policy is much more compelling when it is the litigation of private parties which threatens to draw the two judicial systems into conflict than when it is the United States which seeks a stay to prevent threatened irreparable injury to a national interest. The frustration of superior federal interests that would ensue from precluding the Federal Government from obtaining a stay of state court proceedings except under the severe restrictions of 28 U. S. C. § 2283 would be so great that we cannot reasonably impute such a purpose to Congress from the general language of 28 U. S. C. § 2283 alone.” Id., at 225-226.

In Leiter, the United States brought suit under the authority of the Attorney General. Here it is the Board that moved to prevent “irreparable injury to a national interest.” The Board is the sole protector of the “national interest” defined with particularity in the Act. Leiter, of course, was initiated by the Attorney General; but underlying the controversy were federal agencies in the Department of the Interior responsible for administration of the public lands. The fact that the moving party was a federal agency, not the Attorney General, was considered irrelevant in Bowles v. Willingham, supra, where the Administrator of the Emergency Price Control Act sued to enjoin a state court from interfering with orders of the federal agency. An exception from the general ban on federal injunctions against state court action was implied by reason of the fact that the method of review of the orders of the federal agency was in the Emergency Court of Appeals. But there was no suggestion that suit by or against the Administrator was not a suit of the United States. The purpose of § 2283 was to avoid unseemly conflict between the state and the federal courts where the litigants were private persons, not to hamstring the Federal Government and its agencies in the use of federal courts to protect federal rights. We can no more conclude here than in Leiter that a general statute, limiting the power of federal courts to issue injunctions, had as its purpose the frustration of federal systems of regulation. See Brown v. Wright, 137 F. 2d 484, 488. The frustration of superior federal interests by the general language of § 2283 cannot reasonably be imputed. See NLRB v. Sunshine Mining Co., 125 F. 2d 757, 762; NLRB v. New York State Board, 106 F. Supp. 749, 752; NLRB v. Industrial Commission, 84 F. Supp. 593, aff’d, 172 F. 2d 389.

The fact that the Board is given express authority to seek enforcement of its orders in some sections of the Act is not persuasive that the Act expresses a policy to bar the Board from enforcing the national interests on other matters. The instances where the Board is given explicit authority to seek the aid of federal courts are not exclusive examples, as we have already shown. They are only particularized instances of specific enforcement devices relating to specified orders, not a denial by implication that the Act and the Board would not be entitled to federal aid or protection in other instances, as illustrated by In re National Labor Relations Board, supra; Amalgamated Workers v. Edison Co., supra; and Nathanson v. NLRB, supra. The exclusiveness of the federal domain is clear; and where it is a public authority that seeks protection of that domain, the way seems clear. For the Federal Government and its agencies, the federal courts are the forum of choice. For them, as Leiter indicates, access to the federal courts is “preferable in the context of healthy federal-state relations.” 352 U. S., at 226.

Whether there are parts of the state court injunction that should survive our reversal of the judgment below is a question we do not reach. It will be open on the remand of the cause.

Reversed and remanded.

Mr. Justice White,

dissenting.

I

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. NLRB, 347 U. S. 501 (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 (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. NLRB, 344 U. S. 25 (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 (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. In the instant case, however, we deal with a statutorily defined agency created 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 (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 (1971); Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U. S. 281, 286 (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. NLRB, 385 F. 2d 760, 763 (CA8 1967); Texas Industries, Inc. v. NLRB, 336 F. 2d 128, 132 (CA5 1964); Int’l Union of Electrical, Radio & Machine Workers v. NLRB, 110 U. S. App. D. C. 91, 94, 289 F. 2d 757, 760 (1960); Consumers Power Co. v. NLRB, 113 F. 2d 38, 41-43 (CA6 1940); NLRB v. Hopwood Retinning Co., 98 F. 2d 97, 101 (CA2 1938); NLRB v. National Licorice Co., 104 F. 2d 655, 658 (CA2 1939), modified on other grounds, 309 U. S. 350 (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. NLRB, 309 U. S. 350, 369 (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 (1) 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 (1) would weaken the Norris-LaGuardia Act:

“The only comment I can make on that statement 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 in; 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.

II

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,” Motor Coach Employees v. Lockridge, 403 U. S. 274, 309 (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 pre-empted 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 (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. 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 (1970) (BüRGer, 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 preempting 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 (1970) (White, J., concurring); Taggart v. Weinacker’s, Inc., supra, at 227-228 (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.

       For the history of present § 2283 see H. R. Rep. No. 308, 80th Cong., 1st Sess., A181.

       The basis of our decision in Nathanson was that “[t]he priority granted by [§ 64 (a) (5), 11 U. S. C. § 104 (a) (5)] ... was designed ‘to secure an adequate revenue to sustain the public burthens and discharge the public debts.’ ” 344 U. S., at 27-28. Because there was “no function ... of assuring the public revenue” and “[t]he beneficiaries of the claims [were] private persons,” id., at 28, we found it inappropriate to apply the priority for claims owing the United States and, instead, gave the claims the same “treatment tha[t] other wage claims enjoy[ed].” Id., at 29. The suggestion that Nathanson is a stronger case for equating the status of the Board to that of the United States disregards both the policies of the Bankruptcy Act upon which we relied in that decision and the federal pre-emption which inheres in the present case.
      Cases such as Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U. S. 81, do not support a miserly interpretation of the Board’s powers. There, we held that costs of litigation could be assessed against a corporation which Congress had launched into the commercial world with the power to “sue and be sued.” Contrary to the dissent’s assertion that the case turned on the failure of Congress to manifest an intent “to bestow the privileges and immunities of the United States on a federal agency,” post, at 150, our decision there was based upon the grant of “the unqualified authority to sue and be sued [which] placed petitioner upon an equal footing with private parties as to the usual incidents of suits in relation to the payment of costs and allowances.” 312 U. S., at 85-86.

        Amalgamated Clothing Workers v. Richman Bros. Co., 348 U. S. 511, held that a private party under the protection of the Board’s order could not obtain injunctive relief in a federal court against an anti-picketing order issued by a state court. And see Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U. S. 281.

       Actions against the National Labor Relations Board are dismissed on the ground that they are against a federal agency exercising a governmental regulatory function and so are suits against the United States, which cannot be sued without the consent of Congress. Clover Fork Coal Co. v. NLRB, 107 F. 2d 1009. The same holds for the Atomic Energy Commission, Cotter Corp. v. Seaborg, 370 F. 2d 686; the Civil Service Commission, Soderman v. U. S. Civil Service Commission, 313 F. 2d 694; the Veterans Administration, Evans v. U. S. Veterans Admin. Hospital, 391 F. 2d 261; and the Securities and Exchange Commission, Holmes v. Eddy, 341 F. 2d 477. Similarly, an action by the Director General of Railroads was held to be on behalf of the United States and thus was not barred by the relevant statute of limitations. Davis v. Corona Coal Co., 265 U. S. 219.

       Congress has vested the Board with broad powers to seek in-junctive relief in the district courts. Section 10 (1), 29 U. S. C. § 160 (Z), for example, gives the Board power to obtain an injunction where an investigation produces reasonable cause to believe that a charge of secondary boycott or illegal picketing activity is true. Section 10 (j), 29 U. S. C. § 160 (j), provides a similar basis of power for other unfair labor practices. “In case of contumacy or refusal to obey a subpena issued to any person” during “hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of [its] powers” under §§ 9 and 10, 29 U. S. C. §§ 159 and 160, the Board may seek injunctive relief from a district court requiring compliance. 29 U. S. C. §161 (2).

       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 Nathan-son 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, 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 distinguish 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, 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 (1939). Since “there is no presumption that the agent is clothed with sovereign immunity,” 312 U. S., at 85, 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 Arredondo, 6 Pet. 691, 724 (1832); Kendall v. United States, 107 U. S. 123, 125 (1883); Neuberger v. Commissioner of Internal Revenue, 311 U. S. 83, 88 (1940).