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62 Denv. U. L. Rev. 531 (1985)
Federal Preemption under the NLRA: A Rule in Search of a Reason

handle is hein.journals/denlr62 and id is 565 raw text is: FEDERAL PREEMPTION UNDER THE NLRA: A RULE IN SEARCH OF A REASON MICHAEL SHULTZ* JOHN HUSBAND** INTRODUCTION It is now more than twenty-five years since the United States Supreme Court established in San Diego Building Trades Council v. GarmonI one of the broadest rules of federal preemption ever created by the Court.2 Garmon provides, with some exceptions, that neither state nor federal courts can regulate conduct that is actually or arguably protected * Associate, Holland and Hart, Denver Colorado. J.D., University of Utah (1984); M.A., University of Northern Colorado (1974); B.S., Illinois State University (1973). ** Partner, Holland and Hart, Denver, Colorado. J.D., University of Toledo (1977); B.S., Ohio State University (1974). 1. 359 U.S. 236 (1959). In Garmon, a union had begun the peaceful picketing of the employer's business after the employer had refused to recognize the union as the exclusive bargaining agent for employees. Id. at 237. The employer brought suit in state court and obtained an injunction to enjoin the union from picketing and from using other pressure to force a collective bargaining agreement and was awarded $1,000 for damages for loss to the business as a result of the picketing. Id. at 237-38. Initially, the case worked its way to the Supreme Court where it was held that the preemption issues could not be adjudicated until it was determined whether the award of damages was proper under California law. 353 U.S. 26, 29 (1957). On remand, the California court set aside the injunction on the basis of the preemption doctrine, but sustained the award of damages. Garmon v. San Diego Building Trades Council, 49 Cal.2d 595, 320 P.2d 473 (1958). Once again, the Supreme Court granted certiorari, and determined that the California court did not have jurisdiction to award damages arising out of peaceful union activity which it could not enjoin. The Garmon decision generated a large body of critical literature. See, e.g., McCoid, State Regulation of Labor-Management Relations: The Impact of Garmon and Landrum-Griffin, 48 IOWA L. REV. 578 (1963); Meltzer, The Supreme Court, Congress and State Jurisdiction Over Labor Relations: 1, 59 COLUM. L. REV. 6 (1959); 74 HARV. L. REV. 641 (1961). 2. See J. NOWAK, R. ROTUNDA AND J. YOUNG, HANDBOOK ON CONSTITUTIONAL LAW, 267-70 (1977) (discussing the preemption doctrine). Federal preemption is a pragmatic doctrine derived from the need to avoid conflicts between state and federal law. Under the Supremacy Clause, U.S. Const. art. VI, cl. 2, all laws of the United States made in pursu- ance of the Constitution become the supreme law of the land. The difficult aspect of the preemption doctrine is determining when a congressional enactment conflicts with state law. The preemption issue is not difficult when the state and federal laws are mutually exclusive; however, it is not always clear whether the state law actually conflicts with fed- eral law. The touchstone for determining federal preemption is congressional intent: whether Congress intended there to be any room for federal regulation of the field that is the subject of the federal enactment. Because congressional enactments generally are si- lent on the question of preemption, the courts are left to infer the intent of Congress from the language, structure and purpose of the federal enactment. When a scheme of federal regulation is so pervasive that there are no reasonable grounds for believing that Congress left room for the states to operate, the state law will be preempted. See Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 (1945). Second, an act of Congress may involve a field of regulation in which the federal interest is so dominant that the federal system must rule to the exclusion of any state law. See Hines v. Davidowitz, 313 U.S. 52 (1941). Finally, a state law may reflect a policy that is inconsistent with the goals set forth in a federal statute. See Hill v. Florida, 325 U.S. 538 (1945).