Finally, since the state sought to compensate for a completed wrong rather than parallel the preventive remedy available through the Board, the danger of conflict with federal policy was further reduced. However, since damages are a means of enforcing policy and controlling conduct, although somewhat less direct than an injunction, the form of the remedy alone would not seem to be the consideration determining whether state law may conflict with federal law.
It is readily apparent that the present case provides no such assurance that there will not be conflict between state and federal laws as applied. Defendants engaged in peaceful picketing, not threats and violence; their conduct was not of a type that gives any assurance how the National Labor Relations Board would view it under section 8(b), or that the Board might not find it a protected activity under section 7. Furthermore, if recovery were permitted under state law, it would be based, not on law of general application, but on law aimed specifically at labor relations.
Section 303(b) gives a right of action for damages to any person injured by certain secondary boycott activities described in section 303(a). Damages can be awarded under this section by any court that has jurisdiction of the parties, without a prior determination by the National Labor Relations Board that there has been an unfair labor practice. It could be argued that these provisions show a congressional willingness to take the risk of inconsistent application by different tribunals of standards bearing on labor relations for the sake of compensating injured persons. A state court awarding damages, however, would interpret and apply federal law, and its decision could be brought into harmony with Board determinations under section 8(b), and federal court adjudications under section 303 on review by the United States Supreme Court. The danger of inconsistency would be considerably less than when recovery is under state law.