(dissenting). I dissent and vote for affirmance. The complaint was properly dismissed for lack of jurisdiction of the subject matter. When the employer alleged that it was engaged in interstate commerce the controversy was forthwith brought within the exclusive province of the National Labor Management Relations Act of 1947 (Taft-Hartley Act), (U. S. Code, tit. 29, ch. 7, § 141 et seq.). The jurisdictional effect of this admission is not diminished by the circumstance that none of its employees are members of the defendant union and none are on strike or that the union has not been recognized as their bargaining agent. That they have not been so recognized is no fault of the union as a proceeding to determine the appropriate employee representative is now pending undetermined before the National Labor Relations Board. It also appears that throughout the picketing has been peaceful and orderly; no violence has been involved; that there has been no secondary boycott and none claimed, and that the signs used *309by the pickets have been neither fraudulent nor misleading and at no time has the employer complained that the police protection as furnished, has been inadequate.
There is no longer any doubt that Congress has pre-empted the field of labor relations affecting interstate commerce, and has conferred on the National Labor Eelations Board the exclusive right to pass upon unfair labor practice within that sphere whenever the State statute is in conflict with the Federal statute (Amalgamated Assn. of St., Elec. Ry. & Motor Coach Employees v. Wisconsin Employment Relations Bd., 340 U. S. 383, revg. 257 Wis. 43; International Union of United Automobile Workers v. O’Brien, 339 U. S. 454, revg. 325 Mich. 250) and by the same reasoning when the State and Federal statutes are substantially similar Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U. S. 767, revg. 295 N. Y. 601), and which principle we have recognized and recently applied (Costaro v. Simons, 302 N. Y. 318, revg. 277 App. Div. 773; Ryan v. Simons, 277 App. Div. 1000, affd. 302 N. Y. 742).
It may not reasonably be assumed that because the National Labor Relations Act, as amended in 1947, is silent on the issue of stranger picketing as an unfair union practice that the Congress left this phase of labor management relations to the regulation and control of the State, while retaining jurisdiction over the right to strike. The silence is accounted for — the Congress actually considered the matter by striking down an affirmative proposal that would have made “ any strike or other concerted interference with an employer’s operations ” — to compel an employer to recognize for collective bargaining a representative not certified — as an unfair labor practice (Legislative History Labor Management Relations Act, 1947, Vol. I, 428; Vol. II, 1007). Silence under such circumstances is not tantamount to creating an exception in a field otherwise pre-empted by the Congress. Whether or not stranger picketing as practiced here in a peaceful and orderly manner without violence, fraud or misleading representation constitutes an unfair union practice is an issue for determination by the National Labor Eelations Board which has exclusive jurisdiction to investigate, determine and prevent (Labor Management Relations Act, 1947, § 10).
The judgment appealed from should be affirmed, with costs.