The question presented for decision, is the authority and jurisdiction of the Court of Common Pleas in labor disputes affecting interstate commerce.
It is my view that the Supreme Court has determined that the National Labor Relations Board has the exclusive authority to decide as to whether peaceful picketing in a labor dispute involving interstate commerce is a fair or unfair labor practice.
It is alleged by the relator union that a part of the work and business of the gas company was being performed by supervisors at their places of residence. The evidence is clear that a part of the telephone communications and business of the gas company was being carried on at and from the residences of the gas company supervisors.
It is my opinion, therefore, that the question as to whether the picketing is a fair or an unfair labor practice is a question to be decided by the National Labor Relations Board, and not by the courts.
It is not disputed that the picketing of the residences of the supervisors was on account of and was a part of the labor dispute between the union and the Gas Company, involving interstate commerce.
It is my opinion that the decision of the United States Supreme *Page 199 Court in San Diego Building Trades Council v. Garmon,359 U.S. 236, controls the decision of this court in the action now before us. Paragraphs (a), (b), (c), (d) and (e) of the syllabus in that case are as follows:
"(a) When an activity is arguably subject to Section 7 or Section 8 of the National Labor Relations Act, as was the picketing here involved, the states as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board.
"(b) Failure of the National Labor Relations Board to assume jurisdiction does not leave the states free to regulate activities they would otherwise be precluded from regulating.
"(c) Since the National Labor Relations Board has not adjudicated the status of the conduct here involved, and since such activity is arguably within the compass of Section 7 or Section 8 of the Act, the state's jurisdiction is displaced.
"(d) A different conclusion is not required by the fact that all that is involved here is an attempt by the state to award damages, since state regulation can be as effectively exerted through an award of damages as through some form of preventive relief.
"(e) United Automobile Workers v. Russell, 356 U.S. 634, and United Construction Workers v. Laburnum Corp.,347 U.S. 656, distinguished."
The pertinent allegations of the relator's petition are as follows:
"1. On January 21, 1961, The Ohio Fuel Gas Company, hereinafter called Ohio Fuel Gas or the Company, filed in the Common Pleas Court of Lucas County, Ohio, a petition for injunction in a cause docketed on the records of that court as No. 189833, (Appendix 1). Utility Workers Union of America, AFLCIO, Local No. 349, hereinafter referred to as the Union, was named as principal defendant.
"2. On January 25, 1961, the Company filed in said Common Pleas Court cause of action a supplemental petition for injunction (Appendix 2).
"3. In said supplemental petition, the Company alleged, in substance, that certain of its supervisory employes, who are not members of the Union, have been assigned to operate and maintain its natural gas system, and `that such supervisory employes *Page 200 in the course of such work are notified by telephone at their homes of the work that is required to be done, and of necessity, begin and end their transportation to and from such required work at their said homes,' (paragraph 4 on page 2 of the supplemental petition, emphasis supplied.)
"* * *
"5. The supplemental petition alleged that the Union had begun picketing the residences of its supervisory personnel and that such picketing `is illegal, unlawful and intimidating to such employes and to their families, and constitutes an unlawful invasion of the rights of privacy of such employes,'" (paragraph 6 on page 3 of the supplemental petition).
"* * *
"7. Pursuant to order entered by defendant, the Honorable Geraldine Macelwane, on January 25, 1961, a hearing was held before the defendant on January 26, 1961, upon the prayer in both the petition and the supplemental petition for a temporary restraining order. The Union, by counsel, moved orally in said hearing that the temporary restraining order prayed for in the supplemental petition be denied on the ground that the court was without jurisdiction to issue such an order, and that the supplemental petition be dismissed on the ground that the court was without jurisdiction to entertain it. Counsel for the Union contended that the conduct of the Union complained of is subject only to such relief as the Company may be entitled to under the National Labor Relations Act, 29 U.S.C. § 151; that such relief may be accorded only through the National Labor Relations Board, the jurisdiction of which the Company did not allege it had invoked; that the conduct of the Union at issue was either arguably protected or arguably prohibited by the National Labor Relations Act; and that a state could not apply to peaceful concerted activities of labor organizations designed to put economic pressure on the Company so as to outlaw such activities because of their alleged objective or effect upon the employes of the Company. The defendant overruled this oral motion of the Union.
"* * *
"10. The journal entry set forth above shows that Judge Macelwane has determined that she has jurisdiction to decide on the Company's supplemental petition whether the non-violent *Page 201 conduct through which the Union is allegedly exerting economic pressure upon the Company is in fact and in law protected or prohibited by the national Act. Unless prohibited by this court from doing so, Judge Macelwane will undertake to hear and determine the factual issues raised by the supplemental petition concerning the Union's peaceful conduct on the prayer for a permanent injunction.
"11. In asserting jurisdiction to decide whether in fact or in law the alleged non-violent conduct of the Union is prohibited or protected by the national Act, Judge Macelwane has undertaken to exercise a jurisdiction withdrawn from state courts by the National Labor Relations Act and vested by that Act exclusively in the National Labor Relations Board. Similarly beyond Judge Macelwane's jurisdiction is her determination to test the legality of the alleged conduct complained of under Ohio's common law.
"* * *
"12. The illegality of the exercise of jurisdiction by Judge Macelwane is particularly clear for:
"(1) The petition admits a labor dispute exists between the Company and the Union.
"(2) Counsel for the Company and the Union stipulated in the hearing that the picketing of the homes of supervisors was peaceful, occurred in the daytime only, and consisted of only one picket at a time. It was further stipulated that the homes of the two supervisors were picketed on January 25, 1961, and the homes of four supervisors were picketed on January 26, 1961.
"(3) A trial memorandum filed by counsel for the Company before the hearing on the temporary restraining order admitted the Company was `engaged in interstate commerce or in an industry affecting interstate commerce and is subject to the Labor-Management Relations Act of 1947, as amended, which gives the National Labor Relations Board exclusive jurisdiction over some, but not all, aspects of management labor relation.'"
The answer of the respondent judge does not deny any of the allegations of the plaintiff's petition.
The relator, the Utility Workers Union, prays for the issuance of a writ of prohibition, prohibiting the judge of the *Page 202 Court of Common Pleas from granting a permanent injunction, restraining the relator from peaceful picketing in the vicinity of the homes of the gas company supervisors.
The issue before this court is not whether the Court of Common Pleas has jurisdiction to grant an injunction against violence and intimidation, but rather, whether that court has jurisdiction to grant a permanent injunction against peaceful picketing in the vicinity of the residences of the supervisors of the gas company.
The evidence is that one member of the plaintiff union was engaged in picketing the residence of a supervisor during the period of time between 8 o'clock and 10 o'clock a. m. each day, and that the picketing was peaceful and without violence or threats of violence. It is not disputed that supervisors of the gas company operated company automobiles in the business of the gas company; that the supervisors parked the automobiles in their private residence garages; that equipment of the gas company, being used by the supervisors in performing work for the company, was carried in the company automobiles and was also kept in the automobiles while parked in the private garages of the supervisors. It is also not disputed that calls were received by the supervisors over radios maintained in company automobiles and private telephones of the supervisors, concerning work to be performed by the supervisors for the company while the strike was in progress; and that, prior to the strike, the company automobiles had been parked in the company garage and telephone communications were made at the service building of the company.
There was testimony in the Common Pleas Court that several telephone calls had been received at the home of a supervisor and that some of the calls were of an intimidating character. It seems entirely clear that the telephone calls made by unidentified persons at the residence of a supervisor can have no bearing on the question involved in this proceeding. There is no evidence as to the identity of the persons who made the calls, and there is no reason to believe that the same calls would not have been made if there had been no picketing in the vicinity of the residence of the supervisor. There is no evidence of any connection between the telephone calls and the peaceful picketing. *Page 203
The Common Pleas Court has decided that it has jurisdiction to determine whether the peaceful picketing by the relator union should be permanently enjoined, as follows:
"Upon the petition, supplemental petition, the evidence and the law, the court finds that it has jurisdiction of the subject matter."
As stated in the petition in this court, counsel for the union entered an objection on the ground that the Court of Common Pleas was without jurisdiction to enjoin peaceful picketing, and that objection was overruled by the judge of that court, the respondent in the proceeding now before this court.
The respondent judge of the Court of Common Pleas has granted a temporary restraining order enjoining the relator from peaceful picketing in the vicinity of the residences of the supervisors of the gas company.
It is my opinion, in view of the decisions of the Supreme Court of the United States, that the relator is entitled to a writ of prohibition, prohibiting the judge of the Common Pleas Court from granting a permanent injunction against peaceful picketing by the relator union. 44 Ohio Jurisprudence (2d), Prohibition, Section 14.
The syllabus in the decision of the United States Supreme Court in Guss v. Utah Labor Relations Board, 353 U.S. 1, reads as follows:
"By vesting in the National Labor Relations Board jurisdiction over labor relations matters affecting interstate commerce, Congress has completely displaced state power to deal with such matters where the Board has declined to exercise its jurisdiction but has not ceded jurisdiction to a state agency pursuant to the proviso to Section 10(a) of the National Labor Relations Act.
"(a) By the National Labor Relations Act, Congress meant to reach to the full extent of its power under the Commerce Clause.
"(b) An agreement ceding jurisdiction to a state agency under Section 10(a) of the National Labor Relations Act is the exclusive means whereby states may be enabled to act concerning matters which Congress has entrusted to the National Labor Relations Board.
"(c) Not only was there a general intent on the part of *Page 204 Congress to pre-empt the field of labor practices affecting interstate commerce, but also the proviso to Section 10(a) carries an inescapable implication of exclusiveness.
"(d) Since the power of Congress in the area of commerce among the states is plenary, its judgment in favor of uniformity must be respected, whatever policy objections there may be to the creation of a no-man's land in which labor disputes will not be regulated by any federal or state agency or court. 5 Utah 2d 68, 296 P.2d 733, reversed."
Also see Amalgamated Meat Cutters Butcher Workmen of NorthAmerica Local No. 427 v. Fairlawn Meats, Inc., 353 U.S. 20.
It is my view, as stated above, that the later decision of the United States Supreme Court in San Diego Building TradesCouncil v. Garmon, supra (359 U.S. 236), is controlling in a decision in this proceeding. The reasons for the conclusion that the Court of Common Pleas does not have jurisdiction are clearly stated in the opinion in San Diego Building Trades Council v.Garmon, supra, at page 241, as follows:
"The case before us concerns one of the most teasing and frequently litigated areas of industrial relations, and multitude of activities regulated by Sections 7 and 8 of the National Labor Relations Act. 61 Stat., 140, 29 U.S.C. § 157, 158. These broad provisions govern both protected `concerted activities' and unfair labor practices. They regulate the vital, economic instruments of the strike and the picket line, and impinge on the clash of the still unsettled claims between employers and labor unions. The extent to which the variegated laws of the several states are displaced by a single, uniform, national rule has been a matter of frequent and recurring concern. As we pointed out the other day, `the statutory implications concerning what has been taken from the states and what has been left to them are of a Delphic nature, to be translated into concreteness by the process of litigating elucidation.' International Assn. of Machinists v. Gonzales,356 U.S. 617, 619.
"In the area of regulation with which we are here concerned, the process thus described has contracted initial ambiguity and doubt and established guides for judgment by interested parties and certainly guides for decision. We state these principles in full realization that, in the course of a process *Page 205 of tentative, fragmentary illumination carried on over more than a decade during which the writers of opinion almost inevitably, because unconsciously, focus their primary attention on the facts of particular situations, language may have been used or views implied which do not completely harmonize with the clear pattern which the decisions have evolved. But it may safely be claimed that the basis and purport of a long series of adjudications have `translated into concreteness' the consistently applied principles which decide this case.
"In determining the extent to which state regulation must yield to subordinating federal authority, we have been concerned with delimiting areas of potential conflict; potential conflict of rules of law, of remedy, and of administration. The nature of the judicial process precludes an ad hoc inquiry into the special problems of labor-management relations involved in a particular set of occurrences in order to ascertain the precise nature and degree of federal-state conflict there involved, and more particularly what exact mischief such a conflict would cause. Nor is it our business to attempt this. Such determinations inevitably depend upon judgments on the impact of these particular conflicts on the entire scheme of federal labor policy and administration. Our task is confined to dealing with classes of situations. To the National Labor Relations Board and to Congress must be left those precise and closely limited demarcations that can be adequately fashioned only by legislation and administration. We have necessarily been concerned with the potential conflict of two law-enforcing authorities, with the disharmonies inherent in two systems, one federal the other state, of inconsistent standards of substantive law and differing remedial schemes. But the unifying consideration of our decisions has been regard to the fact that Congress has entrusted administration of the labor policy for the Nation to a centralized administrative agency, armed with its own procedures, and equipped with its specialized knowledge and cumulative experience.
"`Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for *Page 206 investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. * * * A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.' Garner v.Teamsters Union, 346 U.S. 485, 490-491.
"Administration is more than a means of regulation; administration is regulation. We have been concerned with conflict in its broadest sense; conflict with a complex and interrelated federal scheme of law, remedy, and administration. Thus, judicial concern has necessarily focused on the nature of the activities which the states have sought to regulate, rather than on the method of regulation adopted. When the exercise of state power over a particular area of activity threatened interference with the clearly indicated policy of industrial relations, it has been judicially necessary to preclude the states from acting. However, due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the states of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. See International Assn. of Machinists v. Gonzales, 356 U.S. 617. Or where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the states of the power to act.
"When it is clear or may fairly be assumed that theactivities which a state purports to regulate are protected bySection 7 of the National Labor Relations Act, or constitute anunfair labor practice under Section 8, due regard for thefederal enactment requires that state jurisdiction must yield. To leave the states free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed *Page 207 by state law. Nor has it mattered whether the states have acted through laws of broad general application rather than laws specifically directed towards the government of industrial relations. Regardless of the mode adopted, to allow the states to control conduct which is the subject of national regulation would create potential frustration of national purposes.
"At times it has not been clear whether the particular activity regulated by the states was governed by Section 7 or Section 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance in the National Labor Relations Board. What is outside the scope of this court's authority cannot remain within a state's power and state jurisdiction too must yield to the exclusive primary competence of the Board. See, e. g., Garner v. Teamsters Union,346 U.S. 485, especially at 489-491; Weber v. Anheuser-Busch, Inc.,348 U.S. 468.
"The case before us is such a case. The adjudication in California has throughout been based on the assumption that the behaviour of the petitioning unions constituted an unfair labor practice. This conclusion was derived by the California courts from the facts as well as from their view of the Act. It is not for us to decide whether the National Labor Relations Board would have, or should have, decided these questions in the same manner. When an activity is arguably subject to Section 7 or Section 8 of the Act, the states as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.
"To require the states to yield to the primary jurisdiction of the National Board does not ensure Board adjudication of the status of a disputed activity. If the Board decides, subject to appropriate federal judicial review, that conduct is protected by Section 7, or prohibited by Section 8, then the matter is at an end, and the states are ousted of all jurisdiction. Or, the Board may decide that an activity is neither protected nor prohibited, and thereby raise the question whether such activity may be regulated by the states. However, the Board may fail to determine the status of the disputed conduct by declining to assert jurisdiction, or by refusal of the general counsel to file *Page 208 a charge, or by adopting some other disposition which does not define the nature of the activity with unclouded legal significance. This was the basic problem underlying our decision in Guss v. Utah Labor Relations Board, 353 U.S. 1. In that case we held that the failure of the National Labor Relations Board to assume jurisdiction did not leave the states free to regulate activities they would otherwise be precluded from regulating. It follows that the failure of the Board to define the legal significance under the Act of a particular activity does not give the states power to act. 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 withdrawal of this narrow area from possible state activity follows from our decisions in Weber and Guss. The governing consideration is that to allow the states to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy.
"In the light of these principles the case before us is clear. Since the National Labor Relations Board has not adjudicated the status of the conduct for which the state of California seeks to give a remedy in damages, and since such activity is arguably within the compass of Section 7 and Section 8 of the Act, the state's jurisdiction is displaced.
"Nor is it significant that California asserted its power togive damages rather than to enjoin what the Board may restrainthough it could not compensate. Our concern is with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered. Such regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy. Even the state's salutary effort to redress private wrongs or grant compensation for past harm cannot be exerted to regulate activities that are potentially subject to the exclusive federal regulatory scheme. See Garner v. Teamsters Union, 346 U.S. 485, 492-497. It may be that an award of damages in a particular situation will not, in fact, conflict with the active assertion of federal *Page 209 authority. The same may be true of the incidence of a particular state injunction. To sanction either involves a conflict with federal policy in that it involves allowing two law-making sources to govern. In fact, since remedies form an ingredient of any integrated scheme of regulation, to allow the state to grant a remedy here which has been withheld from the National Labor Relations Board only accentuates the danger of conflict.
"It is true that we have allowed the states to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order. United Automobile Workers v. Russell,356 U.S. 634; United Construction Workers v. Laburnum Corp.,347 U.S. 656. We have also allowed the states to enjoin such conduct. Youngdahl v. Rainfair, 355 U.S. 131; Auto Workers v.Wisconsin Board, 351 U.S. 266. State jurisdiction has prevailed in these situations because the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace is not overridden in the absence of clearly express congressional direction. We recognize that the opinion in United Construction Workers v. Laburnum Corp., 347 U.S. 656, found support in the fact that the state remedy had no federal counterpart. But that decision was determined, as is demonstrated by the question to which the review was restricted, by the `type of conduct' involved, i. e. `intimidation and threats of violence.' In the present case there is no such compelling state interest." (Emphasis added.)
Since the peaceful picketing involved in the case before us is a part of a labor dispute affecting interstate commerce, it is clear that, whether such picketing is fair or not, fair labor practice is a question for the National Labor Relations Board, and, as clearly stated by the Supreme Court, it is not a question to be determined by the courts.
It is my conclusion that the Supreme Court decisions are to the effect that where Sections 7 and 8 of the National Labor Relations Act have application, as in the case at bar, the courts do not have jurisdiction to determine whether peaceful picketing does or does not constitute a fair labor practice and that such authority is within the exclusive jurisdiction of the National Labor Relations Board.
The decision of the majority of this court is to the effect *Page 210 that the Court of Common Pleas should be allowed to grant a permanent injunction against "the peaceful picketing" in the vicinity of the residences of the supervisors, on the ground that the judge of that court is entitled to determine its jurisdiction by entering a final judgment in the cause. Many decisions are cited in support of that view. The writer does not believe that the cases cited are authority for that conclusion. It is uniformly held that prohibition is a preventive remedy and is for the purpose of preventing courts from finally acting where they do not have jurisdiction. The settled rule is stated in 44 Ohio Jurisprudence (2d), 226, Prohibition, Section 37, as follows:
"* * * Therefore, the earliest time at which the writ can be applied for with reasonable hope of success is immediately after the court, on its jurisdiction being challenged by objection or motion, overrules the objection, denies the motion, or otherwise expressly or by necessary implication announces its purpose to proceed. On the other hand, one who seeks a writ of prohibition must act before the issue becomes moot, inasmuch as prohibition is a preventive rather than a corrective remedy and will not lie to undo something which the inferior tribunal has fully consummated. So too, it has been held that the unexplained dilatoriness on the part of the relator, where his diligence was required and time was an important factor, will deprive him of relief in a prohibition action."
It is clear that the decision of this court should not be upon the ground that the Court of Common Pleas should be allowed to enter final judgment before petitioner is entitled to seek preventive relief.
If a litigant is required to allow the inferior court to render a final judgment before he can seek preventive relief, prohibition has lost its purpose as a remedy.
If the Court of Common Pleas is without jurisdiction, but, notwithstanding, is allowed to grant a permanent injunction against peaceful picketing, the relator can be required to appeal, and all relief may be deferred until a final determination by the Supreme Court of the United States.
The Supreme Court of this state has determined beyond any doubt that the remedy of prohibition is too late after the court has acted finally by entering a final judgment.
The decision of the Supreme Court in State, ex rel, Maysville *Page 211 Bridge Co., v. Quinlan, Judge, 124 Ohio St. 658, is determinative to the effect, that prohibition is the remedy before final judgment and not after the inferior tribunal has made a final decision. The opinion by the court in theMaysville Bridge Co. case, supra, is as follows:
"The court find that there is no warrant for the issuance of a writ of prohibition sought by the plaintiff, for the reason that the action, order and judgment which the plaintiff seeks to have restrained and prohibited have been fully consummated. A writ of prohibition may be awarded only to prevent the unlawful usurpation of jurisdiction, and does not lie to prevent the enforcement of a claimed erroneous judgment previously rendered; it may be invoked only to prevent proceeding in a matter in which there is an absence of jurisdiction and not to review the regularity of an act already performed. It cannot be substituted for a proceeding in error."
The following unequivocal pronouncements in the opinion in the decision by the United States Supreme Court in San DiegoBuilding Trades Council v. Garmon, supra, are considered by the writer to be finally dispositive of the question (359 U.S. 242, 244):
"`Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes towards labor controversies. * * * A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.' * * *
"* * *
"At times it has not been clear whether the particular activity regulated by the states was governed by Section 7 or Section 8 or was, perhaps, outside both these sections. But *Page 212 courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of this court's authority cannot remain within a state's power and state jurisdiction too must yield to the exclusive primary competence of the Board."
The Supreme Court has also determined that no distinction between public utilities and national manufacturing organizations is to be made in the administration of the federal Labor Act.Consolidated Edison Co. v. National Labor Relations Board,305 U.S. 197; Amalgamated Assn. of Employees v. Wisconsin Board (1951), 340 U.S. 383.
It is my conclusion, therefore, that the respondent judge of the Common Pleas Court should be prohibited from granting a permanent injunction against peaceful picketing in the vicinity of the residences of the supervisors, and that the controversy on that question should be presented to the National Labor Relations Board, pursuant to the provisions of the National Labor Relations Act and the decisions of the United States Supreme Court.