concurring.
I concur in the result upon the narrow ground that the Unions’ activities for which the State has awarded damages may fairly be considered protected under the Taft-Hartley Act, and that therefore state action is precluded until the National Labor Relations Board has made a contrary determination respecting such activities. As the Court points out, it makes no difference that the Board has declined to exercise its jurisdiction. See Guss v. Utah Labor Relations Board, 353 U. S. 1; Meat Cutters v. Fairlawn Meats, Inc., 353 U. S. 20.; and our earlier opinion in the present -case when it was first before us, 353 U. S. 26.
*250Were nothing more than this particular case involved, I would be content to rest my concurrence at this point without more. But as today’s decision will stand as a landmark in future “pre-emption” cases in the labor field, I feel justified in particularizing why I cannot, join the Court’s opinion.
If it were clear that the Unions’ conduct here was unprotected activity under Taft-Hartley, I think that United Constr. Workers v. Laburnum Constr. Corp., 347 U. S. 656, and Automobile Workers v. Russell, 356 U. S. 634, would require that the California judgment be sustained, even though such conduct might be deemed to be federally prohibited. In both these cases state tort damage judgments against unions were upheld in respect of conduct which this Court assumed was prohibited activity under the Federal Labor Act. The Court now says, however, that those decisions are not applicable here because they were premised on violence, which the States could also have enjoined, Automobile Workers v. Wisconsin Board, 351 U. S. 266, whereas in this case the Unions’ acts were peaceful. In this I think the Court mistaken.
The threshold question in every labor pre-emption case is whether the conduct with respect to which a State has sought to act is, or may fairly be regarded as, federally protected activity.' Because conflict is the touchstone of pre-emption, such activity is obviously beyond the reach of all state power. Hill v. Florida, 325 U. S. 538; Automobile Workers v. O’Brien, 339 U. S. 454; Motor Coach Employees v. Wisconsin Board, 340 U. S. 383. That threshold question was squarely faced in the Russell case, where the Court, at page 640, said: “At the outset, we note that the union’s activity in this case clearly was not protected by federal law.” The same question was, in my view,'necessarily faced in Laburnum.
In both cases it was possible to decide that question without prior reference to the National' Labor Relations *251Board because the union conduct involved was violent, and as such was of course not protected by the federal Act. Thus in Laburnum, the pre-emption issue was limited fo the “type of conduct” before.the Court. 347 U. S., at 658. Similarly in Russell, which was decided on Laburnum principles, the Court stated that the union’s activity “clearly was not protected,” and immediately went on to say (citing prior “violence” cases1) that “the strike was conducted in such a manner that it could have been enjoined” by the State. 356 U. S., at 640. In both instances the Court, in reliance on former “violence” cases involving injunctions,2 might have, gone on to hold, as the Court now in effect'says it did, that the state police power was not displaced by the- federal Act, and thus disposed of the cases on the ground that state damage awards, like state injunctions, based on violent conduct did not conflict with the federal statute. The Court did not do this, however.
Instead the relevance of violence was manifestly deemed confined to rendering the Laburnum and Russell activities federally unprotected. So rendered, they could then only have-been classified as. prohibited or “neither protected nor prohibited.” If the latter, state jurisdiction was beyond challenge. Automobile Workers v. Wisconsin Board, 336 U. S. 245.3 Conversely, if the activities could have been considered prohibited, primary decision by the Board would have been necessary, if state damage awards were inconsistent with federal prohibitions. Garner v. Teamsters Union, 346 U. S. 485. To determine the need for initial reference to the Board, the Court assumed that the activities were unfair labor practices prohibited by the *252federal Act. Laburnum, supra, at 600-663; Russell, supra, at 641. It then considered the possibility of conflict and held that the state damage remedies were not preempted because the federal Act afforded no remedy at all for the past conduct involved in Laburnum, and less than full redress for that involved in Russell. The essence of the Court’s holding, which made resort to primary jurisdiction unnecessary, is contained in the following passage from the opinion in Laburnum, supra, at 665 (also quoted in Russell, supra, at 644):
“To the extent that Congress prescribed preventive procedure against unfair labor practices, that case [Garner v. Teamsters Union, supra,] recognized that the Act excluded conflicting state procedure to the same end. To the extent, however, that Congress has not prescribed procedure for dealing with the consequences of tortious conduct already committed, there is no ground for concluding that existing criminal penalties or liabilities for tortious conduct have been eliminated. The care we took in the Garner case to demonstrate the existing conflict between state and federal administrative remedies in that case was; itself, a recognition that if no conflict had existed, the state procedure would have survived.”
Until today this holding of Laburnum has been recognized by subsequent cases. See Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 477; Automobile Workers v. Russell, supra, at 640, 641, 644; International Assn. of Machinists v. Gonzales, 356 U. S. 617, 621, similarly characterizing Russell; see also the dissenting opinion in Gonzales, especially at 624-626.4
*253The Court's opinion in this case cuts deeply into the-ability of States to furnish an effective remedy under their own laws for the redress of past nonviolent tortious conduct which is not federally protected, but which may be deemed to be, or is, federally prohibited. Henceforth the States must withhold access to their courts- until the National Labor Relations Board has determined that such unprotected conduct is not an unfair labor practice, a course which, because of unavoidable Board delays, may render state redress ineffective. And in instances in which the Board declines to exercise its jurisdiction, the States are entirely deprived of power to.afford any relief. Moreover, since the reparation powers of the Board, as we observed in Russell, are narrowly circumscribed, those injured by nonviolent conduct will often go remediless even when the Board does accept jurisdiction.
I am, further, at loss to understand, and can find no basis on principle or in past decisions for, the Court's intimation that the States may even be powerless to act when' the underlying activities are clearly “neither protected nor prohibited” by the federal Act. Surely that suggestion is foreclosed by Automobile Workers v. Wisconsin Board, 336 U. S., supra,5 as well as by the approach taken to federal pre-emption in such cases as Allen-Bradley Local v. Wisconsin Board, supra, Bethlehem Steel Co. v. New York Board, 330 U. S. 767, 773, and Algoma Plywood Co. v. Wisconsin Board, 336 U. S. 301, not to mention Laburnum and Russell and the primary jurisdiction *254doctrine itself.6 Should what the Court now intimates ever come to pass, then indeed state power to redress wrongful acts in the labor field will be reduced to the vanishing point.
In determining pre-emption in any given labor case, I would adhere to the Laburnum and Russell distinction between damages and injunctions and to the principle that state power is not precluded where the challenged conduct is neither protected nor prohibited under the federal Act. Solely because it is fairly debatable whether the conduct here involved is federally protected, I concur in the result of today’s decision.
Youngdahl v. Rainfair, Inc., 355 U. S. 131; Automobile Workers v. Wisconsin Board, 351 U. S. 266.
See Allen-Bradley Local v. Wisconsin Board, 315 U. S. 740; cases cited at Note 1, supra.
See text at pp. 253-254, infra.
The same view is taken of Laburnum and Russell in the amici briefs filed in the present case by the Government and the American Federation ■ of Labor and Congress of Industrial Organizations, the latter stating that ,“[w]e hope to argue in an appropriate case that the Russell decision should be overruled.”
The Court may be correct in stating that “the approach taken in that case, in which the Court undertook for itself to determine the status of the disputed activity, has not been followed in later decisions, and is no longer of general application.” That, however, has nothing to do with the vitality of the holding that there is no preemption when the conduct charged is in fact neither protected nor prohibited. To the contrary, that holding has remained fully intact, and, as already noted, underlay the decisions in Laburnum and Russell.
If the “neither protected nor prohibited” category were one of pre-emption, there would be no point in referring any injunction case initially to the Board since the pre-emption issue would be plain however the challenged activities might be classified federally. The same is true of damage cases under the Court’s premise of conflict. State power would thus be confined to activities which were violent or of merely peripheral federal concern, see International Assn. of Machinists v. Gonzales, 356 U. S. 617.