John Marshall Harlan II

“ The federal concern for protecting such conduct when engaged in by railway employees is no less tenuous. The States' interest in preventing it is no less compelling.
Petitioners committed no acts of violence. But their picketing, albeit peaceful, could not be characterized as purely 'primary.' Respondent asserts, in essence, that, because the picketing had secondary aspects, it was necessarily unprotected and therefore subject to proscription by the state court. ”

“ For on petitioners' theory, it is hard to conceive of any railway labor dispute that is not 'arguably' subject to the NLRB's primary jurisdiction. A serious question would be presented whether the parties to such a dispute were ever obligated to pursue the Railway Labor Act's procedures, and whether the Mediation and Adjustment Boards could ever concern themselves with a dispute-until the matter had first been submitted to the NLRB and that agency had determined that it lacked jurisdiction. ”

“ The disputants' positions in the course of negotiation and mediation, and their willingness to submit to binding arbitration or abide by the recommendations of a presidential commission, would be seriously affected by the knowledge that after these procedures were exhausted a State would, say, prohibit the employees from striking or prevent the railroad from taking measures necessary to continue operating in the face of a strike. ”

“ Such interference would be compounded if the disputants were-as they frequently would be subjected to various and divergent state laws. Railway (and airline [16] ) labor disputes typically present problems of national magnitude. A strike in one State often paralyzes transportation in an entire section of the United States, and transportation labor disputes frequently result in simultaneous work stoppages in many States.
The Railway Labor Act's entire scheme for the resolution of major disputes would become meaningless if the States could prohibit the parties from engaging in any self-help. ”

“ In order to gain better perspective for viewing the central issue in this case-petitioners' alleged 'secondary' activities-we examine first what we find to be polar examples of protected and unprotected conduct-primary strikes and picketing on the one hand, violence and intimidation on the other.
The Court has indicated, without reference to the National Labor Relations Act, that employees subject to the Railway Labor Act enjoy the right to engage in primary strikes over major disputes. ”

“ And when the traditional railway labor organizations act on behalf of employees subject to the Railway Labor Act in a dispute with carriers subject to the Railway Labor Act, the organizations must be deemed, pro tanto, exempt from the National Labor Relations Act. ”

“ On the side of labor, it is the cherished right to strike.' Whether the source of this right be found in a particular provision of the Railway Labor Act [20] or in the scheme as a whole, it is integral to the Act. State courts may not enjoin a peaceful strike b covered railway employees, no matter how economically harmful the consequences may be. ”

“ The problem of delineating the scope of permissible picketing at a 'common situs'-a place, such as respondent's terminal, where both the struck employer and 'secondary' or 'neutral' employers are carrying on business activities has been among the most mooted and complex under the Act. ”

“ It is difficult to formulate many generalizations governing common situs picketing, but it is clear that secondary employers are not necessarily protected against picketing aimed directly at their employees. ”

“ The fact that respondent, the other roads, or other industries in the State suffered serious economic injury as a consequence of petitioners' activities would not, of course, in itself render the picketing unlawful. ”

“ NLRB, supra, where it held that striking employees could picket to induce a neutral railroad's employees to refuse to pick up and deliver cars for the struck employer-even though the picketed gate was owned by the railroad, and the railroad's employees would have to pass by the place of picketing to pick up and deliver cars for other plants that were not struck. ”

“ Marine Engineers, supra, is inapposite. For assuming, arguendo, that this is a 'doubtful case,' 370 U.S., at 182, 82 S.Ct., at 1243, we were not there concerned with a conflict between two independent and mutually exclusive federal labor schemes. ”

“ The protected primary strike 'is aimed at applying economic pressure by halting the day-to-day operations of the struck employer,' United teelworkers of America, A.F.L.-C.I.O. v. NLRB, 376 U.S. 492, 499, 84 S.Ct. 899, 904, 11 L.Ed.2d 863 (1964) ; and protected primary picketing 'has characteristically been aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt,' ibid., including other employers and their employees. ”