(concurring). The Taft-Hartley Act (U. S. Code, tit. 29, § 141 et seq.) is invoked by District 50, United Mine Workers of America (U.M.W.A.), and employees of plaintiff whom it is attempting to organize, in applying for a reversal of a temporary injunction order obtained by plaintiff and Local 1764, United Steel Workers of America, C.I.O., restraining interference with a labor contract between plaintiff and said C.I'.O. Local. No labor dispute under section 876-a of the Civil Practice Act is involved.
We concur in those portions of the opinion by Mr. Justice Callahan relative to acts of violence as forming a basis for jurisdiction in the State court, and in the conclusion that the order appealed from granting a motion for an injunction pendente lite, as well as the order denying the motion to dismiss the complaint, should be affirmed in order to maintain the status quo until the dispute between these unions can be adjusted by the National Labor Relations Board or by some other means before the expiration of the existing collective bargaining agreement. The acts of violence set forth in a dozen affidavits, most of which are made on the personal knowledge of the affiants, concern such matters as cutting tires and otherwise damaging automobiles, destruction of operating-machinery of the business, bodily assaults upon employees who did not join in the work stoppages, threatening such employees at their homes with bodily harm, and the shouting of abuses at the plant by pickets seeking to intercept employees desiring to work. These acts are not very effectively denied on information and belief, and in our judgment they permeated *84the strike activities to such a degree as to warrant the issuance of the temporary injunction.
The reasons stated in Special Term’s opinion, combined with these acts of violence, or even without them, also appear adequate to sustain the injunction, and in this respect the case of Costaro v. Simons (302 N. V. 318) does not appear to have such a far-reaching effect as is ascribed to it by appellants. This phase of the issue concerns whether the Taft-Hartley Act confers exclusive jurisdiction upon the Federal courts at the instance of the National Labor Relations Board, even where a cause of action for an injunction lies in the State court irrespective of Federal legislation. Undoubtedly, procedure by the National Labor Relations Board in the Federal courts is exclusive to enjoin unfair labor practices which were created by the Taft-Hartley Act. But this action is to restrain unlawful interference with existing contract rights; such a cause of action exists under State law without the aid of this Federal legislation, and it seems to us that such law may still be invoked by an aggrieved party, and an action thereunder maintained in the State court, at least until the National Labor Relations Board has acted in event that an unfair labor practice as defined in section 8 of the Federal statute is also involved.
In Costaro v. Simons (302 N. T. 318, 321-322, supra) the .Court of Appeals stated: “We read the complaint as alleging that the controversy involves unfair labor practices within the purview of the Labor Management Relations Act of 1947 (§ 8, subd. [a], par. [3]; subd. [b], par, [2]; U. S. Code, tit. 29, § 158, subd. [a], par. [3]; subd. [b], par. [2]). That being so, plaintiffs are under the necessity of resorting in the first instance to the National Labor Relations Board.” Section 8 of the Federal statute defines unfair labor practices by (a) enumerating such as may be committed by an employer and (b) those which may be committed by a labor organization or its agents. Paragraph (3) of subdivision (a) and paragraph (2) of subdivision (b), which created the unfair labor practice involved in the Costar o case, both refer to discrimination in regard to hire or tenure of employment on account of labor union activity or membership. That is an unfair labor practice which was created by the Wagner Act (U. S. Code, tit. 29, § 151 et seq.), and did not exist before its passage. Paragraph (3) of subdivision (a) of section 8 of the Wagner Act as amended by the Taft-Hartley Act, refers to discrimination of that nature by the employer; paragraph (2) of subdivision (b) describes the corresponding unfair labor practice by a labor organization *85or its agents in causing or attempting to cause an employer to discriminate against an employee in violation of paragraph (3) of subdivision (a). From the circumstance that these particular provisions in section 8 as amended by the Taft-Hartley Act are alone cited in the Gostaro case, it is reasonable to assume that the unfair labor practice which they define was me only one at issue, and that the case held that the Taft-Hartley Act was granting no remedy by injunction at the instance of private parties for the enforcement of the new causes of action which were created by section 8. In holding that only the National Labor Eelations Board could apply to enjoin such unfair labor practices in the Federal courts, the Court of Appeals does not appear to have passed upon whether State courts have been divested of jurisdiction to enjoin practices that were forbidden by State statute or common law without aid from the National Labor Eelations Act (U. S. Code, tit. 29, § 141 et seq.) or the Taft-Hartley Act.
This appears to be such a cause of action. Section 163 of Teller on Labor Disputes and Collective Bargaining states (p. 493) that, apart from any Federal legislation, “ labor unions under collective bargaining agreements with employers have enjoined rival unions from seeking to induce employers to breach the agreements ”, citing Kinlock Tel. Co. v. Local Union (275 F. 241, C. A. 8th, certiorari denied 257 U. S. 662); Tracey v. Osborne (226 Mass. 25); Goyette v. Watson Co. (245 Mass. 577); Wolchak v. Wiseman (145 Misc. 268); Esco Operating Corp. v. Kaplan (144 Misc. 646), and other cases. The union shop contract in the instant suit would have been valid irrespective of any certification of Local 1764 under the National Labor Eelations Act and without regard to that act (Williams v. Quill, 277 N. Y. 1). It is presumptively valid, notwithstanding the provisions of the National Labor Eelations Act (Matter of Levinsohn Corp. [Joint Bd. of Cloak Union], 299 N. Y. 454). In the 1950 Supplement by Teller, after saying that there is no authority in the State courts to grant injunctions at the instance of private parties restraining the commission of unfair labor practices specified in section 8 of the Taft-Hartley Act, the learned author adds (§ 398.24): “ On the other hand, it is doubtful that the Act has deprived state courts of the right to issue injunctions against activities of employees or labor unions carried on for unlawful labor objectives as defined in state law, even if the industry involved in the proceeding ‘ affects ’ commerce provided, of course, that the result does not collide with the *86policies of the Act.” In the present instance, there is no conflict between the injunction pendente lite that was granted at Special Term and the Federal statute.
It would appear that any violation of section 8 of the National Labor Relations Act, as amended by the Taft-Hartley Act, is incidental. Section 8 does not mention the breach of a labor contract already made; it refers to bargaining in order to arrive at a contract with a uncertified union, after a rival union has been certified by the National Labor Relations Board as the proper, collective bargaining representative. In this case plaintiff and defendant Local 1764, C.I.O., would have had the right to enjoin District 50 from causing a breach of this labor contract if there had been no Wagenr Act or Taft-Hartley Act, and irrespective of any certification by the National Labor Relations Board.
The Court of Appeals in Matter of Davega-City Radio v. State Labor Relations Bd. (281 N. Y. 13) had occasion to rule upon the boundaries of Federal and State jurisdiction as between the National and State Labor Relations Boards. The familiar rule was cited (p. 21) that “ where there is a conflict between a statute enacted by Congress pursuant to its delegated powers, e.g., the regulation of interstate and foreign commerce, and a law adopted by a State in the exercise of its police power, then the former prevails. * * * But where a State act is enforced in the absence of National legislation, or a State act is enforced where there co-exists consistent National legislation, then article VI is complied with, since the supremacy of the laws of the United States is in no manner impaired ” (italics from original). It was held that even where an employer was engaged in interstate commerce, “ the State Labor Relations Board may enforce the State act at least until such time as it is ousted by the exercise by the National Labor Relations Board of its jurisdiction under the National act.” (P. 24.) The court added, significantly for the instant case: “ Appellant seeks to create a twilight zone, in which it may disobey its plain duty, required by both statutes, upon the pretext that its conduct is dictated by the other statute.” (P. 24.)
Teller (§ 270, p. 735) said that “ in view of the general consistency of state with federal Labor Relations Acts, it is the exercise of federal jurisdiction under an actual law, and not the passage of the law, which ousts state courts or agencies from jurisdiction to act.” This statement was made before the adoption of the Taft-Hartley Act, to which there is no New *87York State counterpart, but the principle applies to the present situation, inasmuch as the activities to be enjoined are forbidden by the New York case law, which is in harmony with the Taft-Hartley Act insofar as they overlap within the area of the subject matter of this lawsuit. Far be it from courts to hold that law has less sanction when it emanates from judicial decision than from statute.
This is analogous to the principle that the States may enforce their antimonopoly laws even though affecting interstate commerce, until the Federal antitrust laws have been invoked, if the State and Federal laws be harmonious (Standard Oil Co. v. Tennessee, 217 U. S. 413; Leader Theatre Corp. v. Randforce Amusement Corp., 186 Misc. 280, Botein, J., affd. without opinion 273 App. Div. 844; Mayer Bros. Poultry Farms v. Meltzer, 274 App. Div. 169, 176-178).
The opinion of the United States Supreme Court in Auto. Workers v. Wis. Board (336 U. S. 245, 253) indicates that the Federal jurisdiction' under the Taft-Hartley Act is exclusive to enjoin a strike “ when and because its purpose is one that the Federal Act made illegal ” (italics supplied). That signifies that power to sue for injunctive relief which was newly created by the Taft-Hartley Act is conferred upon the National Labor Eolations Board, not that any pre-existing right of the employer to sue is being cancelled. This harmonizes with the Report of the Conference Committee of the Congress of the United States upon this legislation, written in the third person: ‘ ‘ The conference agreement makes clear that, when two remedies exist, one before the Board and one before the courts, the remedy before the Board shall be in addition to, and not in lieu of, other remedies.” Concerning that statement by the conference committee, the Circuit Court of Appeals in the Fourth Circuit stated, in Amazon Cotton Mill Co. v. Textile Workers Union (167 F. 2d 183,187, per Parker, J.): “ The last sentence of the quotation does not mean, of course, that a general remedy in the courts was being given by the act, but merely that an option existed where a remedy in the courts was given by the act, or existed otherwise. ’ ’
The case of Fay v. American Cystoscope Makers (98 F. Supp. 278, U. S. Dist. Ct., S. D. N. Y., 1951) helps to clarify this subject. The action there was by a union to enjoin the employer and other unions from bringing about the violation of a collective bargaining contract. The employer was charged with co-operating with noncontracting unions to break the agreement. *88The employer removed the action to the Federal court, and a motion was made by the contracting union to remand to the State court. This motion was denied by reason of subdivision (a) of section 301 of the National Labor Relations Act as amended by the Taft-Hartley Act (U. S. Code, tit. 29, § 185, subd. [a]) not on any ground that the National Labor Relations Board alone could proceed, but only for the reason that the third cause of action advanced a claim against the employer founded on its own breach of contract which under subdivision (a) of section 301 had to be enforced in an action between the parties in the Federal District Court. The other causes of action against the noncontracting unions for inducing the breach were apparently not considered to be sufficient to keep the case in the Federal court. Such alleged outside interference is all that is involved in the instant case.
In John Hancock Mut. Life Ins. Co. v. United O. & P. Wkrs. (93 F. Supp. 296, U. S. Dist. Ct., N. J., 1950), the motion to remand was granted, for the reason that a cause of action existed under the State law without recourse to the Federal enactment, notwithstanding that they overlapped to some extent.
To summarize: the cause of action against District 50, to restrain its interference with an existing collective bargaining agreement, was not created by the Taft-Hartley Act nor by the Wagner Act. It existed under New York State law independently of and prior to the adoption of either of those statutes. It is possible that an unfair labor practice created by clause (C) of paragraph (4) of subdivision (b) of section 8 of the National Labor Relations Act, as amended by the TaftHartley Act, might also be asserted against District 50 on account of its alleged unlawful conduct in “ forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 9.’s If the National Labor Relations Board sues for an injunction in the Federal courts under that section, and its right to do so is upheld, the State court may then be deprived of jurisdiction over this action.
No representation proceedings are likely to come before the National Labor Relations Board for some time, in view of the well-known refusal of U.M.W.A. officials to file noncommunist affidavits as required by subdivision (h) of section 9. Until such affidavits are filed, it is useless to direct either District *89No. 50 or the employer to begin representation proceedings, since the National Labor Relations Board could not certify District 50 to be the collective bargaining representative even if the proceeding were instituted by the employer (§9, subd. [h]). Until the National Labor Relations Board at least sues for an injunction against District 50 in the United States District Court, there is nothing in the National Labor Relations Act, either as originally enacted or as amended by the TaftHartley Act, which purports to deprive the State courts of their pre-existing jurisdiction to restrain interference with contract rights, whether arising from collective bargaining agreements or from other contracts. These have sometimes been called “ private ” as distinct from “ public ” rights (National Labor Relations Bd. v. Newark Morning L. Co., 120 F. 2d 262, 266, certiorari denied 314 U. S. 693; cf. Barile v. Fisher, 197 Mise. 493). Otherwise conduct which has been restrained where condemned by State law alone (Goodwins, Inc., v. Hagedorn, 303 N. Y. 300, 673), might be continued during the interim for the reason that it may be held to be prohibited by Federal law also. This would be liable to stagnate the rights of parties “in a kind of limbo which should not be J/ (John Hancock Mut. Life Ins. Co. v. United O. & P. Wkrs., supra, p. 308).
If the State court is to be divested of jurisdiction to entertain this cause of action, which has its origin in the case law of the State, due to the circumstance that an unfair labor practice as defined in section 8 of the Federal Act may also be involved, it would follow that the State courts could not grant injunctions to restrain picketing in such cases even where the activities of the strikers are permeated with violence. Under State law, it has been customary to restrain even peaceful picketing under that circumstance; but if appellants ’ contention be correct, that could not be done if the injunction under State law were to extend to anything which the Federal act also to some extent prohibits as an unfair labor practice defined by section 8. The hands of the State courts would be tied, regardless of whether the State cause of action for injunctive relief were to prohibit picketing accompanied by violence or to preclude unlawful interference with contract rights. It may well be that the State court would be ousted of jurisdiction, and an employer’s injunction vacated, upon actual intervention by the National Labor Relations Board, even in the case of injunctions restraining all picketing on account of violence permeating strike activities conducted in furtherance of an unfair labor practice as defined by section 8, *90"but it is conceded that this would not prevent the State court from restraining such activities in the beginning. Neither should it prevent the State courts from exercising their accustomed jurisdiction to restrain unlawful interference with existing contracts until the National Labor Relations Board intervenes.
No intimation is made that appellants are without orderly remedy if the contentions 'which they make are true. If the employer be guilty of unfair labor practice in discharging individual employees by reason of their activity in behalf of District 50, recourse by them to the National Labor Relations Board has not been enjoined by the order appealed from and has been open at all times. Under the contract with Local 1764, C.I.O., wages may be renegotiated at any time after June, 1952. The terms of the existing officers of that union expire then, at which time appellants may act to fill such positions by choosing others more to their liking. If Local 1764 no longer represents a majority of plaintiff’s employees, due to their having resigned and joined District 50, it would be open to them (if the necessary noncommunist affidavits were filed) to apply to the National Labor Relations Board for decertification of Local 1764 as the collective bargaining representative, in which event it may well be that the existing contract would inure to the benefit of a newly selected collective bargaining representative. (Cf. Klein v. Herrick, 41 F. Supp. 417, U. S. Dist. Ct., S. D. N. Y., Rifkind, J.) Nothing in the language of the order appealed from purports to stay any application to the National Labor Relations Board.
The orders appealed from should be affirmed, with costs.