Felix Frankfurter

“ The right of action for emotional disturbance, like the punitive recovery the plaintiff sought unsuccessfully in this case, is a particularly unwelcome addition to the scheme of federal remedies because of the random nature of any assessment of damages. Without a reliable gauge to which to relate their verdict, a jury may fix an amount in response to those 'local procedures and attitudes toward labor controversies' from which the Garner case sought to isolate national labor regulation. ”

“ There is nothing in the Taft-Hartley amendments that detracts in the slightest from this unequivocal declaration that private rights of action are not contemplated within the scheme of remedies Congress has chosen to prescribe in the regulation of labor relations. [17] It is consistent with every indication of legislative intent. As the Act originally passed the House, § 12 created a private right of action in favor of persons injured by certain unfair labor practices. ”

“ When Congress, acting in a field of dominant federal interest as part of a comprehensive scheme of federal regulation, confers rights and creates remedies with respect to certain conduct, it has expressed its judgment on the desirable scope of regulation, and state action to supplement it is as 'conflicting,' offensive and invalid as state action in derogation. ”

“ One of its declared purposes is 'to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce * * *.' [8] The Act deals with the very conduct involved in this case by declaring in § 8 (b) (2) that it shall be an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate in regard to hire or tenure of employment against an employee who has been denied union membership on some ground other than failure to tender periodic dues. ”

“ Assuming that the union conduct involved constituted a § 8 (b) (2) unfair labor practice, [13] the existence of a conflict of remedies in this case cannot be denied. Section 10 (c) of the Act empowers the Board to redress such conduct by requiring the responsible party to reimburse the worker for the pay he has lost. Relying upon the identical conduct on which the Board would premise its backpay award, [14] the state court has required of the union precisely what the Board would require: that Gonzales be made whole for his lost wages. ”

“ The National Labor Relations Board could not have given respondent the relief that California gave him according to its local law of contracts and damages. Although, if the unions' conduct constituted an unfair labor practice, the Board might possibly have been empowered to award back pay, in no event could it mulct in damages for mental or physical suffering. And the possibility of partial relief from the Board does not, in such a case as is here presented, deprive a party of available state remedies for all damages suffered. See International Union, United Automobile Workers v. ”

“ The conflict lies in remedies, not rights. The same picketing may injure both public and private rights. But when two separate remedies are brought to bear on the same activity, a conflict is imminent.' [2]
The two subsequent opinions of this Court that have undertaken to restate the holding in Garner, one of them written by the author of today's majority opinion, confirm its prohibition against duplication of remedies. ”

“ This is emphasized by the fact that the subject matter of the litigation in the present case, as the parties and the court conceived it, was the breach of a contract governing the relations between respondent and his unions. ”

“ The right of action that the majority sanctions here, on the other hands, is a creature of state law and may be expected to vary in content and effect according to the locality in which it is asserted. ”

“ Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151, the broad holding of Garner has never been impaired. Certainly United Construction Workers etc. v. Laburnum Constr. Corp., supra, did not have that effect. The Laburnum opinion carefully notes that the Federal Act excludes conflicting state procedures, and emphasizes that 'Congress has neither provided nor suggested any substitute' [5] for the state relief there being sustained. [6]
The principles declared in Garner v. Teamsters C. & H. Local Union, supra, were not the product of imperfect consideration or untried hypothesis. ”

“ R. 60 61.↑ It is unnecessary to consider whether a § 8 (b) (1) (A) violation was also involved.↑ The cause of action under state law arose when the union denied Gonzales the benefits of membership by refusing dispatch. Subsequent employer refusals to hire merely established the damages. With the unfair labor practice, on the other hand, employer refusal or failure to hire is an essential element of the wrongful conduct. In either case Gonzales is required to prove the same union and employer conduct to qualify for compensation.↑ Born v. ”