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United States v. State

Decided: May 3, 1982.


On certification to the Superior Court, Law Division.

For affirmance in part and modification in part -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Schreiber, J.


This case concerns the validity of N.J.S.A. 34:13C-1 et seq., commonly referred to as the Strikebreakers Act. This Act proscribes the importation, transportation or supplying of individuals for employment in this State for the purpose of interfering by force or violence with lawful employer/employee bargaining, or replacing employees who are lawfully on strike or locked out. The Act also forbids anyone not directly involved in the strike or lockout to recruit persons to replace such employees and prohibits employment agencies from knowingly referring applicants to an employer whose employees are then on strike or locked out.*fn1

Plaintiffs, United States Chamber of Commerce and New Jersey Chamber of Commerce, filed a complaint in the Superior Court, seeking a declaratory judgment that the Act is unconstitutional. The principal basis for the challenge was that the regulatory scheme is preempted by federal labor law under the Supremacy Clause of the Federal Constitution, Art. VI, Clause 2. Plaintiffs also charged that the legislation violates the Due Process,*fn2 Equal Protection,*fn3 Commerce*fn4 and Privileges and Immunities Clauses*fn5 of the Federal Constitution, and the due

process, equal protection and special legislation provisions of the New Jersey Constitution.*fn6 The Attorney General filed an answer that admitted that a substantial question existed regarding preemption and the Commerce Clause, but denied that the Strikebreakers Act violated any of the other constitutional provisions.

The parties entered into a stipulation in lieu of discovery. The stipulation provided that

(1) Pursuant to N.J.S.A. 34:13C-1 et seq., various complaints have been issued in municipal courts, and some presentments have been made to various grand juries, but no determination of the constitutionality of N.J.S.A. 34:13C-1 et seq. has ever been undertaken by any court.

(2) The instant case is ripe for disposition by motions for summary judgment.

(3) For purposes only of a motion for summary judgment, plaintiffs United States Chamber of Commerce and New Jersey Chamber of Commerce have standing to challenge the constitutionality of N.J.S.A. 34:13C-1 et seq.

(4) The Attorney General has never issued any formal or informal opinion concerning the constitutionality of N.J.S.A. 34:13C-1 et seq.

No further evidence of these facts other than this stipulation need be offered.

Subsequently, plaintiffs moved for summary judgment. The trial court declared N.J.S.A. 34:13C-1(c), 34:13C-2 and 34:13C-3*fn7 unconstitutional. The provisions were invalidated as being preempted by the Supremacy Clause as to those employers and employees covered by the National Labor Relations Act, 29 U.S.C. § 151 et seq. The court also declared that the same provisions were void in their entirety because they violated the Due Process and Equal Protection Clauses. The trial court found that N.J.S.A. 34:13C-1(a) and (b) withstood the constitutional attack.

The Attorney General appealed to the Appellate Division. The New Jersey AFL-CIO intervened as amicus curiae. Prior to the adjudication of the matter by the Appellate Division, we granted plaintiff's motion under R. 2:12-2(a) for direct certification.

The issues before us are whether the matter is properly before the Court and whether N.J.S.A. 34:13C-1(c), -2 and -3 are constitutional.*fn8


We turn first to whether the matter is properly before us. The Attorney General's answer questioned whether the plaintiffs were persons whose rights were adversely affected. However, he has not pressed that point upon the appeal and did not oppose plaintiffs' motion for direct certification because of the substantive importance of the issues. Nevertheless, we are compelled to comment on the matter because the proceedings could be viewed as a request for an advisory opinion.

The action was commenced under the Declaratory Judgments Act. That Act authorizes courts to declare rights, status and other legal relations so as to afford litigants relief from uncertainty and insecurity. A person whose rights or legal relations are affected by a statute may have the validity of that statute determined. N.J.S.A. 2A:16-53. To maintain such an action, there must be a "justiciable controversy" between adverse parties, and plaintiff must have an interest in the suit. Young v. Byrne, 144 N.J. Super. 10, 16 (Law Div. 1976). "The Uniform Declaratory Judgments Act cannot be used to decide or declare rights or status of parties upon a state of facts which are future, contingent and uncertain." Lucky Calendar Co. v. Cohen, 20 N.J. 451, 454 (1956) quoting Tanner v. Boynton Lumber Co., 98 N.J. Eq. 85 (Ch.1925).

Membership in the plaintiff organizations, which are nonprofit tax exempt corporations, includes thousands of employers within the State. Criminal complaints for violating the Act have been filed against some of these employers. We believe the plaintiffs have standing, even though the harm may technically be not to them but to their constituencies. This holding is in keeping with the now well-established policy enunciated by Justice Jacobs in Crescent Park Tenants Ass'n v. Realty Eq. Corp. of N.Y., 58 N.J. 98 (1971):

Unlike the Federal Constitution, there is no express language in New Jersey's Constitution which confines the exercise of our judicial power to actual cases and controversies. U.S.Const. art. III, § 2; N.J.Const. art. VI, § 1. Nevertheless we will not render advisory opinions or function in the abstract (New Jersey Turnpike Authority v. Parsons, 3 N.J. 235, 240 (1949)) nor will we entertain proceedings by plaintiffs who are "mere intermeddlers" (Baxter v. Baxter, 43 N.J. Eq. 82, 86 (Ch.1887), aff'd, 44 N.J. Eq. 298 (E. & A. 1888), or are merely interlopers or strangers to the dispute (Bergen County v. Port of New York Authority et al., 32 N.J. 303, 307, 318 (1960)). Without ever becoming enmeshed in the federal complexities and technicalities, we have appropriately confined litigation to those situations where the litigant's concern with the subject matter evidenced a sufficient stake and real adverseness. In the overall we have given due weight to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of "just and expeditious determinations of the ultimate merits." [ Id. at 107-08]

See also New Jersey Chamber of Commerce v. New Jersey Election Law Enforcement Commission, 82 N.J. 57, 67-69 (1980); Home Builders League of South Jersey, Inc. v. Tp. of Berlin, 81 N.J. 127, 131-35 (1979).


The Federal Constitution and federal laws are "the supreme Law of the Land" and "Judges in every State [are] bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S.Const., Art. VI, cl. 2. State laws that conflict or interfere with federal legislation must give way because of this constitutional provision, known as the Supremacy Clause. Determining when that conflict or interference exists is frequently a complex and intricate matter, particularly when unraveling the unstated intent of Congress.

The ultimate question is always whether Congress intended to preempt the subject matter of the state legislation. See Int'l Longshoremen's Ass'n v. Waterfront Comm'n, 85 N.J. 606, 612 (1981). When the doctrine of preemption is applied, the underlying policies of the Supremacy Clause -- elimination of inconsistent state policies and ensurance that the states will be bound together with certain goals -- are served. See generally The Federalist No. 15 (A. Hamilton).

Preemption analysis begins with identifying the subject matter of the state law and determining whether there is a federal law operative in that field. Hines v. Davidowitz, 312 U.S. 52, 64-68, 61 S. Ct. 399, 402-404, 85 L. Ed. 581, 587 (1941). The focus then shifts to the federal regulation. The Supreme Court has developed some general guidelines that are useful in uncovering Congressional intent. Does the federal statute expressly or by necessary implication indicate exclusivity? See Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 6 L. Ed. 23 (1824). Is the federal scheme so pervasive that it precludes coexistence of state regulation? See San Diego Bldg. Trades v. Garmon, 359 U.S. 236, 246, 79 S. Ct. 773, 780, 3 L. Ed. 2d 775, 784 (1959). Does the state program stand "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress"? See Hines v. Davidowitz, supra, 312 U.S. at 67-68, 61 S. Ct. at 404, 85 L. Ed. at 587. An affirmative answer to any one of these questions would establish preemption and the state policy must yield insofar as it frustrates or blocks federal policy. Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S. Ct. 1210, 1217, 10 L. Ed. 2d 248, 256-57 (1963).

In the labor-management field, Congress has not expressly provided for exclusive federal jurisdiction.*fn9 See Weber v. Anheuser-Busch,

Inc., 348 U.S. 468, 480-81, 75 S. Ct. 480, 487-488, 99 L. Ed. 546, 557-58. The federal statute directly involved here, the National Labor Relations Act, involves, at least facially, less than complete regulation. The question then is whether the state activity interferes with the federal scheme delineated in the Labor Act. This in turn necessitates an analysis of federal statutory law as interpreted by the federal courts. See generally Cox, "Labor Law Preemption Revisited," 85 Harv.L.Rev. 1337 (1972).

The National Labor Relations Act generally grants employees the right to form and join labor organizations and to bargain collectively through representatives of their own choosing. NLRA § 7, 29 U.S.C.A. § 157. These enumerated employee activities are protected against employer interference. Preemption safeguards these rights against intrusion by the states. International Union, UAW v. O'Brien, 339 U.S. 454, 457, 70 S. Ct. 781, 782, 94 L. Ed. 978, 983 (1950). See also Street Employees Division 1287 v. Missouri, 374 U.S. 74, 83 S. Ct. 1657, 10 L. Ed. 2d 763 (1963); Amalgamated Ass'n v. Wisconsin Emp. Rel. Bd., 340 U.S. 383, 71 S. Ct. 359, 95 L. Ed. 364 (1951). Moreover, states may not provide for relief predicated on the same rights set forth in section 7. So, even concurrent or supplementary state legislative action is not permissible. Garner v. Teamsters Local 776, 346 U.S. 485, 491, 74 S. Ct. 161, 166, 98 L. Ed. 228, 239-40 (1953).

The Labor Act also delineates activities, designated as unfair labor practices, in which neither an employer nor a labor organization may lawfully engage. NLRA § 8, 29 U.S.C.A.

§ 158.*fn10 Here again, state statutes may not duplicate or conflict with the federal provisions. Thus, a state was held to be powerless to grant employees remedies for an employer's conduct that was an unfair labor practice under federal law. Plankinton Packing Co. v. Wisconsin Employment Relations Bd., 338 U.S. 953, 70 S. Ct. 491, 94 L. Ed. 588 (1950), rev'g mem. 255 Wis. 285, 38 N.W. 2d 688 (1949). See also Garner v. Teamsters Local 776, supra, 346 U.S. at 490-91, 74 S. Ct. at 165-66, 98 L. Ed. at 239-40 (1953) (union's picketing in violation of section 8(b)(2) could not be basis for state action).

A third category involves situations where the activities do not fall clearly within section 7 or section 8, but are "arguably" subject to either section. In San Diego Building Trades Council v. Garmon, supra, the Supreme Court held that only the NLRB could make the initial determination whether the activity was subject to regulation under the federal law. It ruled that states were preempted from acting on matters even "arguably" subject to the Act. The Court then went on to state:

In the absence of the Board's clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction. . . . The governing consideration is that to allow the states to control activities that are potentially subject to federal regulations involves too great a danger of conflict with national labor policy. [359 U.S. at 246, 79 S. Ct. at 780, 3 L. Ed. 2d at 784]

There also fell within the sweep of this pronouncement those situations where the NLRB had by regulation declined to exercise jurisdiction, in ...

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