Guss v. Utah Labor Relations Bd., 353 U.S. 1 (1957)

Author: Earl Warren

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Guss v. Utah Labor Relations Bd., 353 U.S. 1 (1957)

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

The question presented by this appeal and by No. 41, post, p. 20, and No. 50, post, p. 26, is whether Congress, by vesting in the National Labor Relations Board jurisdiction over labor relations matters affecting interstate commerce, has completely displaced state power to deal with such matters where the Board has declined or obviously would decline to exercise its jurisdiction, but has not ceded jurisdiction pursuant to the proviso to § 10(a) of the National Labor Relations Act.{1} It is a question we left open in Building Trades Council v. Kinard Construction Co., 346 U.S. 933.

Some background is necessary for an understanding of this problem in federal-state relations and how it assumed its present importance. Since it was first enacted in 1935, the National Labor Relations Act{2} has empowered the National Labor Relations Board "to prevent any person from engaging in any unfair labor practice . . . [defined by the Act] affecting commerce."{3} By this language and by the definition of "affecting commerce" elsewhere in the Act,{4} Congress meant to reach to the full extent of its power under the Commerce Clause. Labor Board v. Fainblatt, 306 U.S. 601, 606-607. The Board, however, has never exercised the full measure of its jurisdiction. For a number of years, the Board decided case by case whether to take jurisdiction. In 1950, concluding that "experience warrants the establishment and announcement of certain standards" to govern the exercise of its jurisdiction, Hollow Tree Lumber Co., 91 N.L.R.B. 635, 636, the Board published standards, largely in terms of yearly dollar amounts of interstate inflow and outflow.{5} In 1954, a sharply divided Board, see Breeding Transfer Co., 110 N.L.R.B. 493, revised the jurisdictional standards upward.{6} This Court has never passed, and we do not pass today, upon the validity of any particular declination of jurisdiction by the Board or any set of jurisdictional standards.{7}

How many labor disputes the Board’s 1954 standards leave in the "twilight zone" between exercised federal jurisdiction and unquestioned state jurisdiction is not known.{8} In any case, there has been recently a substantial volume of litigation raising the question stated at the beginning of this opinion, of which this case is an example.{9}

Appellant, doing business in Salt Lake City, Utah, manufactures specialized photographic equipment for the Air Force on a contract basis. To fulfill his government contracts, he purchased materials from outside Utah in an amount "a little less than $50,000." Finished products were shipped to Air Force bases, one within Utah and the others outside. In 1953, the United Steelworkers of America filed with the Labor Board a petition for certification of that union as the bargaining representative of appellant’s employees. A consent election was agreed to, the agreement reciting that appellant was "engaged in commerce within the meaning of Section 2(6), (7) of the National Labor Relations Act." The union won the election, and was certified by the National Board as bargaining representative. Shortly thereafter, the union filed with the National Board charges that appellant had engaged in unfair labor practices proscribed by § 8(a)(1), (3) and (5) of the Act.{10} Meanwhile, on July 15, 1954, the Board promulgated its revised jurisdictional standards. The Board’s Acting Regional Director declined to issue a complaint. He wrote, on July 21:

Further proceedings are not warranted, inasmuch as the operations of the Company involved are predominantly local in character, and it does not appear that it would effectuate the policies of the Act to exercise jurisdiction.

The union thereupon filed substantially the same charges with the Utah Labor Relations Board, pursuant to the Utah Labor Relations Act.{11} Appellant urged that the State Board was without jurisdiction of a matter within the jurisdiction of the National Board. The State Board, however, found it had jurisdiction, and concluded on the merits that appellant had engaged in unfair labor practices as defined by the Utah Act. It granted relief through a remedial order. On a Writ of Review, the Utah Supreme Court affirmed the decision and order of the state administrative agency.{12} We noted probable jurisdiction. 352 U.S. 817.

On these facts, we start from the following uncontroverted premises:

(1) Appellant’s business affects commerce within the meaning of the National Labor Relations Act, and the Labor Board had jurisdiction. Labor Board v. Fainblatt, supra.

(2) The National Act expressly deals with the conduct charged to appellant which was the basis of the state tribunals’ actions. Therefore, if the National Board had not declined jurisdiction, state action would have been precluded by our decision in Garner v. Teamsters Union, 346 U.S. 485.

(3) The National Board has not entered into any cession agreement with the Utah Board pursuant to § 10(a) of the National Act.

Section 10(a) provides:

The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in Section 8) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise: Provided, That the Board is empowered by agreement with any agency of any State or Territory to cede to such agency jurisdiction over any cases in any industry (other than mining, manufacturing, communications, and transportation except where predominantly local in character) even though such cases may involve labor disputes affecting commerce, unless the provision of the State or Territorial statute applicable to the determination of such cases by suchagency is inconsistent with the corresponding provision of this Act or has received a construction inconsistent therewith.

(Emphasis added.)

The proviso to § 10(a), italicized in the quotation above, was one of the Taft-Hartley amendments to the National Labor Relations Act. Timing and a reference in one of the committee reports indicate that it was drafted in response to the decision of this Court in Bethlehem Steel Co. v. New York Labor Board, 330 U.S. 767.{13} In Bethlehem, foremen in an enterprise affecting commerce petitioned the New York State Labor Relations Board for certification as a bargaining unit. At that time, the National Board was declining, as a matter of policy, to certify bargaining units composed of foremen. The Court held that the federal policy against certifying foremen’s units must prevail. However, it took occasion to discuss the efforts of the two boards to avoid conflicts of jurisdiction.

The National and State Boards have made a commendable effort to avoid conflict in this overlapping state of the statutes. We find nothing in their negotiations, however, which affects either the construction of the federal statute or the question of constitutional power insofar as they are involved in this case, since the National Board made no concession or delegation of power to deal with this subject. The election of the National Board to decline jurisdiction in certain types of cases, for budgetary or other reasons, presents a different problem, which we do not now decide.

Id. at 776. Three Justices were led to concur specially, because, as it was stated for the three:

I read . . . [the Court’s opinion] to mean that it is beyond the power of the National Board to agree with State agencies enforcing laws like the Wagner Act to divide, with due regard to local interests, the domain over which Congress had given the National Board abstract discretion, but which, practically, cannot be covered by it alone. If such cooperative agreements between State and National Boards are barred because the power which Congress has granted to the National Board ousted or superseded State authority, I am unable to see how State authority can revive because Congress has seen fit to put the Board on short rations.

Id. at 779.

Thus, if the opinion of the Court did not make manifest, the concurring opinion did, that, after Bethlehem, there was doubt whether a state board could act either after a formal cession by the National Board or upon a declination of jurisdiction "for budgetary or other reasons." When we read § 10(a) against this background, we find unconvincing the argument that Congress meant by the proviso only to meet the first problem, i.e., cession of jurisdiction over cases the National Board would otherwise handle.

The proviso is directed at least equally to the type of cases which the Board might decline "for budgetary or other reasons" to hear as to the type of cases it might wish to cede to the States for policy reasons -- if, indeed, there is any difference between the two classes. Cases in mining, manufacturing, communications, and transportation can be ceded only where the "industry" is "predominantly local in character." In other industries, which Congress might have considered to be more or less typically local, it put no such limitation on the Board’s power. The Senate Committee spelled the matter out:

The proviso which has been added to this subsection [§ 10(a)] permits the National Board to allow State labor relations boards to take final jurisdiction of cases in borderline industries (i.e., borderline insofar as interstate commerce is concerned), provided the State statute conforms to national policy.{14}

The Committee minority agreed as to the purpose of the proviso, and agreed

with the majority that it is desirable thus to clarify the relations between the Labor Board and the various agencies which States have set up to handle similar problems.{15}

We hold that the proviso to § 10(a) is the exclusive means whereby States may be enabled to act concerning the matters which Congress has entrusted to the Labor Board. We find support for our holding in prior cases in this Court. In Amalgamated Assn. of Employees v. Wisconsin Board, 340 U.S. 383, 397-398, the Court said:

The legislative history of the 1947 Act refers to the decision of this Court in Bethlehem Steel Co. v. New York Labor Board, 330 U.S. 767 (1947), and, in its handling of the problems presented by that case, Congress demonstrated that it knew how to cede jurisdiction to the states. Congress knew full well that its labor legislation "preempts the field that the act covers insofar as commerce within the meaning of the act is concerned," and demonstrated its ability to spell out with particularity those areas in which it desired state regulation to be operative.

(Footnotes omitted.) In a footnote to the first sentence quoted above, the Court cited § 10(a) and described its authorization to cede jurisdiction only where the state law is consistent with the national legislation as insuring "that the national labor policy will not be thwarted even in the predominantly local enterprises to which the proviso applies." Id.,n. 23. See also Algoma Plywood & Veneer Co. v. Wisconsin Board, 336 U.S. 301, 313; California v. Zook, 336 U.S. 725, 732.

Our reading of § 10(a) forecloses the argument based upon such cases as H. P. Welch Co. v. New Hampshire, 306 U.S. 79, and Missouri Pacific R. Co. v. Larabee Flour Mills Co., 211 U.S. 612, that, "where federal power has been delegated but lies dormant and unexercised," Bethlehem Steel Co. v. New York Labor Board, supra, at 775, the States’ power to act with respect to matters of local concern is not necessarily superseded. But, in each case, the question is one of congressional intent. Compare H. P. Welch Co. v. New Hampshire, supra, with Napier v. Atlantic Coast Line R. Co., 272 U.S. 605. And here we find not only a general intent to preempt the field, but also the proviso to § 10(a), with its inescapable implication of exclusiveness.

We are told by appellee that to deny the State jurisdiction here will create a vast no-man’s land, subject to regulation by no agency or court. We are told by appellant that to grant jurisdiction would produce confusion, and conflicts with federal policy. Unfortunately, both may be right. We believe, however, that Congress has expressed its judgment in favor of uniformity. Since Congress’ power in the area of commerce among the States is plenary, its judgment must be respected whatever policy objections there may be to creation of a no-man’s land.

Congress is free to change the situation at will. In 1954, the Senate Committee on Labor and Public Welfare recognized the existence of a no-man’s land, and proposed an amendment which would have empowered state courts and agencies to act upon the National Board’s declination of jurisdiction.{16} The Labor Board can greatly reduce the area of the no-man’s land by reasserting its jurisdiction, and, where States have brought their labor laws into conformity with federal policy, by ceding jurisdiction under § 10(a).{17} The testimony given by the Chairman of the Board before the Appropriations Committees shortly before the 1954 revisions of the jurisdictional standards indicates that its reasons for making that change were not basically budgetary. They had more to do with the Board’s concept of the class of cases to which it should devote its attention.{18}

The judgment of the Supreme Court of Utah is


MR. JUSTICE WHITTAKER took no part in the consideration or decision of this case.

1. 61 Stat. 146, 29 U.S.C. § 160(a).

2. 49 Stat. 449, as amended, 61 Stat. 136, 29 U.S.C. § 151 et seq.

3. § 10(a), 49 Stat. 453, left unchanged in this particular by the Taft-Hartley amendments, 61 Stat. 146, 29 U.S.C. § 160(a).


The term "affecting commerce" means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.

§ 2(7), 49 Stat. 450, left unchanged by the Taft-Hartley amendments, 61 Stat. 138, 29 U.S.C. § 152(7).

5. The NLRB’s Press Release of October 6, 1950, can be found at 26 LRR Man. 50.

6. The NLRB’s Press Release of July 15, 1954, can be found at 34 LRR Man. 75.

7. But see Labor Board v. Denver Building & Construction Trades Council, 341 U.S. 675, 684.

8. Members of the Board disagreed as to the impact of the revision. See Breeding Transfer Co., 110 N.L.R.B. 493, 498-500, 506-508.

9. Among the cases in which courts have sustained state jurisdiction where the Board declines or would decline jurisdiction are Garmon v. San Diego Building Trades Council, 45 Cal.2d 657, 291 P.2d 1; Building Trades Council v. Bonito, 71 Nev. 84, 280 P.2d 295; Hammer v. Local 211, United Textile Workers, 34 N.J.Super. 34, 111 A.2d 308; Dallas General Drivers v. Jax Beer Co., Tex.Civ.App., 276 S.W.2d 384. On the other side are Retail Clerks v. Your Food Stores, 225 F.2d 659; Universal Car & Service Co. v. International Assn. of Machinists, 35 LRR Man. 2087 (Mich.Cir.Ct.); New York State Labor Board v. Wags Transportation System, 130 N.Y.S.2d 731, aff’d, 284 App.Div. 883, 134 N.Y.S.2d 603.

10. 61 Stat. 140, 141, 29 U.S.C. § 158(a)(1, 3, 5).

11. Utah Code Ann.1953, 34-1-1 through 34-1-15.

12. 5 Utah 2d 68, 296 P.2d 733.

13. The Bethlehem decision was handed down April 7, 1947. The proviso to § 10(a) first appeared when S. 1126, which contained the substance of what was to become the Taft-Hartley Act, was reported out of committee April 17. See S.Rep. No. 105, Pt. 2, 80th Cong., 1st Sess. 38.

14. S.Rep. No. 105, 80th Cong., 1st Sess. 26.

15. S.Rep. No. 105, Pt. 2, 80th Cong., 1st Sess. 38. The minority members also said,

We think the clarification of relations between the Federal and State boards contemplated under section 10(a) a wise solution to a complex problem.

Id. at 41. See also S.Rep. No. 986, 80th Cong., 2d Sess. 30-31.


The effect . . . of the Board’s policy of refusing to assert its jurisdiction has been to create a legal vacuum or no-man’s land with respect to cases over which the Board, in its discretion, has refused to assert jurisdiction. In these cases, the situation seems to be that the Board will not assert jurisdiction, the States are forbidden to do so, and the injured parties are deprived of any forum in which to seek relief.

S.Rep. No. 1211, 83d Cong., 2d Sess. 18. The minority agreed that,

When the Federal Board refuses to take a case within its jurisdiction, the State agencies or courts are nevertheless without power to take jurisdiction, since the dispute is covered by the Federal act, even though the Federal Board declines to apply the act. There is thus a hiatus -- a no man’s land -- in which the Federal Board declines to exercise its jurisdiction and the State agencies and courts have no jurisdiction.

Id., Pt. 2, P. 14. The Committee’s bill, S. 2650, was recommitted. 100 Cong.Rec. 6203.

17. The Labor Board has informed us in its brief amicus curiae in these cases that it has been unable, because of the conditions prescribed by the proviso to § 10(a), to consummate any cession agreements.

18. Hearings before Subcommittee of House Committee on Appropriations, Department of Labor and Related Independent Agencies, 83d Cong., 20 Sess. 309, 315, 323.


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Chicago: Earl Warren, "Warren, J., Lead Opinion," Guss v. Utah Labor Relations Bd., 353 U.S. 1 (1957) in 353 U.S. 1 353 U.S. 3–353 U.S. 12. Original Sources, accessed September 25, 2022,

MLA: Warren, Earl. "Warren, J., Lead Opinion." Guss v. Utah Labor Relations Bd., 353 U.S. 1 (1957), in 353 U.S. 1, pp. 353 U.S. 3–353 U.S. 12. Original Sources. 25 Sep. 2022.

Harvard: Warren, E, 'Warren, J., Lead Opinion' in Guss v. Utah Labor Relations Bd., 353 U.S. 1 (1957). cited in 1957, 353 U.S. 1, pp.353 U.S. 3–353 U.S. 12. Original Sources, retrieved 25 September 2022, from