Respondent filed a charge with a Regional Director of the
National Labor Relations Board (Board), alleging that petitioner
Union (Union) had procured his discharge by a company from his
position as a "supervisor" because he was not a member in good
standing with the Union. Supervisors are expressly excluded from
the definition of "employee" under the National Labor Relations
Act. The Union's conduct allegedly violated § 8(b)(1)(A) of the
Act, which proscribes unions from coercing employees in the
exercise of their rights under § 7 to engage in concerted action,
and § 8(b)(1)(B), which prohibits unions from coercing employers in
the selection of their representatives for the purposes of
collective bargaining or the adjustment of grievances. The Regional
Director refused to issue a complaint, concluding that there was
insufficient evidence to establish that the Union had caused
respondent's discharge or had coerced the company in the selection
of its bargaining representative. Instead of appealing to the
Board's General Counsel, respondent filed suit against the Union
and others in a Georgia state court, alleging that the Union had
interfered with his employment contract by coercing the company
into breaching the contract. The trial court dismissed the
complaint, concluding that the common law tort action was preempted
because the subject matter of the complaint was arguably within the
Board's exclusive jurisdiction, but the Georgia Court of Appeals
reversed the dismissal of the case against the Union.
Held: Respondent's state court action against the Union
is preempted by the National Labor Relations Act. Pp.
460 U. S.
675-684.
(a) If the conduct that a State seeks to regulate or to make the
basis of liability is actually or arguably prohibited or protected
by the Act, otherwise applicable state law and procedures are
ordinarily preempted. However, when the conduct at issue is only a
peripheral concern of the Act or touches on interests so deeply
rooted in local feeling and responsibility that, in the absence of
compelling congressional direction, it cannot be inferred that
Congress intended to deprive the State of the power to act, the
state regulation or sanction is not preempted. Pp.
460 U. S.
675-676.
(b) Here, the Union arguably violated § 8(b)(1)(A), because it
is not unusual for workers in the construction industry, such as
respondent, to
Page 460 U. S. 670
fluctuate between supervisory and nonsupervisory positions and,
in view of the low-level supervisory position that respondent held,
it was not unlikely that he would from time to time serve in a
nonsupervisory position, and that he might be intimidated by the
Union's conduct once he again became a statutory employee. The
Union's conduct also arguably violated § 8(b)(1)(B), since it was
at least arguable that respondent was a "supervisor" within the
Act's meaning, his complaint filed with the Regional Director
having indicated that he would have collective bargaining
responsibilities. It was for the Board, not the state courts, to
decide whether respondent was the kind of supervisor who could
invoke § 8(b)(1)(B).
Cf. Iron Workers v. Perko,
373 U. S. 701. Pp.
460 U. S.
678-680.
(c) Preemption cannot be avoided on the theory that the Regional
Director concluded that the Board lacked jurisdiction to adjudicate
the complaint because of respondent's supervisory status, since the
Regional Director instead addressed the merits of the complaint.
Nor did the Regional Director's rejection of the complaint for
insufficient evidence satisfy all of the federal law interests
involved, so as to clear the way for a state cause of action. The
preemption doctrine not only mandates substantive preemption by the
federal law in the areas to which it applies, but also protects the
exclusive jurisdiction of the Board over matters arguably within
the Act's reach. Nor can preemption be avoided on the asserted
grounds that the state cause of action and the § 8(b)(1)(B) unfair
labor practice charge were not sufficiently alike,
Sears
Roebuck & Co. v. Carpenters, 436 U.
S. 180, distinguished; or that respondent should be
permitted to proceed in the state court because he could be awarded
punitive damages and attorney's fees there, whereas he would be
limited to backpay if his complaint had gone forward before the
Board. Pp.
460 U. S.
680-684.
Appeal dismissed and certiorari granted; 159 Ga.App. 693, 285
S.E.2d 30, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined.
REHNQUIST, J., filed a dissenting opinion, in which POWELL and
O'CONNOR, JJ., joined,
post, p.
460 U. S.
684.
Page 460 U. S. 671
JUSTICE WHITE delivered the opinion of the Court.
This case presents the question whether a state court action
brought by one who is a "supervisor" [
Footnote 1] within the meaning of the National Labor
Relations Act § 2(11), 29 U.S.C. § 152(11), for interference by a
union with his contractual relationships with his employer is
preempted by the National Labor Relations Act (NLRA or Act).
I
Respondent Robert C. Jones [
Footnote 2] was offered a supervisory position by the
Georgia Power Co. (Company). Jones reported for work on June 12,
1978. By agreement, he took vacation time after his second day on
the job and reported for work again on June 20, 1978. On this
latter date, he was discharged.
Page 460 U. S. 672
Jones believed that the Company had been persuaded to discharge
him by the union bargaining agent, Local 926 of the International
Union of Operating Engineers (Union). The reason for the Union's
hostility, he believed, was his decision years ago to work for a
nonunion employer. On June 28, 1978, Jones filed a charge with the
Regional Director of the National Labor Relations Board (Board)
against the Union, alleging that the Union had "procured" his
discharge,
"and thereby coerced [the Company] in the selection of its
supervisors and bargaining representative, because [Jones] had not
been a member in good standing of said labor organization."
Allegedly, this action violated §§ 8(b)(1)(A) and (B) of the
Act. [
Footnote 3] App. to
Juris.Statement 25a.
In a letter dated July 19, 1978, the Regional Director said that
further proceedings on respondent's charge were unwarranted, and
that he would not issue a complaint. [
Footnote 4] He explained
Page 460 U. S. 673
that there was insufficient evidence to establish that the Union
had caused Jones' discharge; there was also a lack of evidence
indicating that the Union had restrained or coerced the Company in
the selection of its representative for purposes of collective
bargaining. The Regional Director had instead come to the
conclusion that Jones' discharge had been a part of changes in the
Company's supervisory structure, and that the Union had merely
participated in discussions regarding the changes.
Instead of appealing to the General Counsel, [
Footnote 5] Jones proceeded to state court,
suing both the Union and the Company. Count I of his complaint
claimed that the Union had interfered with the contract between him
and the Company. The allegations were simple. He pleaded that he
had been a member of Local 926 from 1969 to 1974, when he
resigned
Page 460 U. S. 674
from the Union. More recently, the Company had offered him the
job of equipment supervisor at one of its plants, and he and the
Company had entered into a contract in reliance on which he had
terminated his prior employment. The crucial allegation was that
petitioner Thomas D. Archer, the business agent and representative
of the Union, had
"maliciously and with full intent, intimidated and coerced
Georgia Power Company, or caused Georgia Power Company to be
intimidated and coerced, into breaching its employment contract
with the Plaintiff."
Respondent prayed for a judgment of $80,000 against petitioners,
to be composed of $25,000 in lost wages, $50,000 in punitive
damages, and $5,000 in attorney's fees, interest, and costs. Count
II of his complaint sought relief against the Company and alleged
that the Company had breached its employment contract.
The Georgia trial court dismissed the complaint, concluding that
the common law tort action had been preempted because the subject
matter of the complaint was arguably within the exclusive
jurisdiction of the Board. The court observed that there was no
justification for allowing joint federal-state control over the
alleged conduct, since the state interest in protecting state
citizens from the alleged conduct was insignificant, and the risk
of interference with the Board's jurisdiction was substantial.
The Georgia Court of Appeals reversed the dismissal of the case
against the Union. [
Footnote 6]
159 Ga.App. 693, 285 S.E.2d 30 (1981). Following Georgia precedent
it considered to be controlling,
Sheet Metal Workers
International Assn. v. Carter, 133 Ga.App. 872,
212 S.E.2d
645 (1975), and
International Brotherhood of Electrical
Workers v. Briscoe, 143 Ga.App. 417,
239 S.E.2d
38 (1977), the State Court of Appeals held the cause of action
not preempted because Georgia had a deep and abiding interest in
protecting its citizens' contractual rights and because the cause
of action, which sounded in
Page 460 U. S. 675
tort, was so unrelated to the concerns of the federal labor laws
that it would not interfere with the administration of those laws.
As an additional reason for not finding preemption, the court
stated that the Union's acts were not even arguably within the
ambit of § 7 or § 8 of the NLRA, thus purporting to distinguish
Iron Workers v. Perko, 373 U. S. 701
(1963). The Georgia Supreme Court denied review, and petitioners
appealed.
We postponed to the hearing on the merits consideration of our
appellate jurisdiction. 456 U.S. 987 (1982). Petitioners now
acknowledge that this is not a mandatory appeal. [
Footnote 7] We agree, but, treating the
papers as a petition for writ of certiorari, we grant the petition.
Concluding that the Georgia Court of Appeals erred, we reverse.
II
The issue before us "is a variant of a familiar theme."
San
Diego Building Trades Council v. Garmon, 359 U.
S. 236,
359 U. S. 239
(1959). The Court has often been asked to determine whether
particular state causes of action or regulations may coexist with
the comprehensive amalgam of substantive law and regulatory
arrangements that Congress set up in the
Page 460 U. S. 676
NLRA to govern labor-management relations affecting interstate
commerce.
E.g., Sears, Roebuck & Co. v. Carpenters,
436 U. S. 180
(1978);
Farmer v. Carpenters, 430 U.
S. 290 (1977);
Linn v. Plant Guard Workers,
383 U. S. 53
(1966);
Garmon, supra. Our approach to the preemption
issue has thus been stated and restated. First, we determine
whether the conduct that the State seeks to regulate or to make the
basis of liability is actually or arguably protected or prohibited
by the NLRA.
Garmon, supra, at
359 U. S. 245;
see Sears, supra, at
436 U. S.
187-190. Although the "
Garmon guidelines [are
not to be applied] in a literal, mechanical fashion,"
Sears,
supra, at
436 U. S. 188,
if the conduct at issue is arguably prohibited or protected,
otherwise applicable state law and procedures are ordinarily
preempted.
Farmer, supra, at
430 U. S. 296.
When, however, the conduct at issue is only a peripheral concern of
the Act or touches on interests so deeply rooted in local feeling
and responsibility that, in the absence of compelling congressional
direction, it could not be inferred that Congress intended to
deprive the State of the power to act, we refuse to invalidate
state regulation or sanction of the conduct.
Garmon,
supra, at
359 U. S.
243-244. The question of whether regulation should be
allowed because of the deeply rooted nature of the local interest
involves a sensitive balancing of any harm to the regulatory scheme
established by Congress, either in terms of negating the Board's
exclusive jurisdiction or in terms of conflicting substantive
rules, and the importance of the asserted cause of action to the
State as a protection to its citizens.
See Sears, supra,
at
436 U. S.
188-189;
Farmer, supra, at
430 U. S. 297.
[
Footnote 8]
Page 460 U. S. 677
Not only is this case a variant of a familiar theme, but we have
heard this same tune before. In
Iron Workers v. Perko,
supra, the Court considered whether a common law tort action
for interference with a contract of employment was preempted by the
NLRA. Perko, a member of the Iron Workers' Union, was employed at
times as a superintendent and at other times as a foreman. While
acting as a superintendent, he violated a Union rule, and his
membership was suspended in consequence. Union representatives then
told Perko's employer that, because of Perko's transgression, Union
members would no longer take orders from him. Some weeks
thereafter, he was discharged on account of his dispute with the
Union.
We concluded that Perko's common law cause of action was
preempted because it was founded on conduct that, for several
reasons, was arguably within the ambit of § 7 or § 8. First, Perko
was discharged both as a superintendent and a foreman. Even
conceding that the position of superintendent was supervisory and
beyond the reach of the Act, the foreman's position was arguably
nonsupervisory, and covered by the Act. Hence, Perko's discharge
arguably violated the proscription of § 8(b)(1)(A) against a union
interfering with the protected rights of employees and that of §
8(b)(2) against causing an employer to discriminate against an
employee contrary to § 8(a)(3). Second, the Union arguably violated
§ 8(b)(1)(A), since causing the discharge of a supervisor might
coerce employees, who would fear meeting their supervisor's fate,
into forgoing their § 7 rights to engage in concerted action.
Third, the Union's conduct might also have violated § 8(b)(1)(B),
which prohibits unions from restraining or coercing "an employer in
the selection of his representatives for the purposes of collective
bargaining or the adjustment of grievances." Perko, we concluded,
may well have had sufficient grievance-handling responsibilities to
come within the realm of supervisors whose selection the Union
could not seek to dictate.
Page 460 U. S. 678
Since Jones, unlike Perko, had a job only as a supervisor, and
not also as an employee, the Union does not rely on the first
reason given in
Perko for finding the challenged conduct
arguably subject to the proscriptions of the Act. It is urged that
the other two reasons given in
Perko for such a holding
are fully applicable here. The Union adds that Jones' cause of
action threatens to punish the workers' arguably protected conduct
in protesting, noncoercively, the selection of people for
supervisory positions whether or not they entail collective
bargaining responsibilities. For these reasons, the Union submits
that Jones' state court action is preempted. We agree.
III
In
Perko, the Court thought the Board could reasonably
construe § 8(b)(1)(A) to prohibit the discharge of a supervisor for
failure to observe Union rules because the discharge would
inevitably tend to coerce nonsupervisory employees to submit to
Union regimentation, and hence coerce them in the exercise of their
§ 7 rights. In that event, the Board could also order the Union to
reimburse the supervisor for his lost wages. The Board's subsequent
holdings apply a variant of this approach in the construction
industry, where it is not unusual for workers to fluctuate, as
Perko did, 373 U.S. at
373 U. S. 706,
between supervisory and nonsupervisory positions. In
Local
Union No. 725, Plumbers, 225 N.L.R.B. 138 (1976),
enf'd, 572 F.2d 550 (CA5 1978), the Union caused the
employer to breach a promise to hire the charging party as a
supervisor. For two reasons, the Board held that the Union had
violated § 8(b)(1)(A), and was liable to the charging party for
backpay. First, it was found that certain employees depending on
Union job referrals had learned of the Union's conduct and were
thereby intimidated in the exercise of their rights under the Act.
Second, the Board reasoned that,
"because workers in the construction industry frequently cycle
in and out of supervisory jobs, discrimination against [an
individual] in his attempt to become a supervisor would carry
Page 460 U. S. 679
over to intimidate him once he again became a statutory
employee."
See 572 F.2d at 552. The Board's "fluctuating status"
approach is arguably applicable to this case. Jones was employed in
the construction industry, and, in view of the low-level
supervisory position he held, it was not unlikely that he would
from time to time serve in a nonsupervisory position. [
Footnote 9] It also is as clear here,
as it was in
Perko, that the Union's conduct was arguably
prohibited by § 8(b)(1)(B), which forbids a union to coerce an
employer in the choice of his bargaining representative. In
Perko, there was some doubt whether Perko was a supervisor
within the meaning of the Act; here there is no doubt in that
respect. Of course, not every supervisor is a "representative
for the purposes of collective bargaining or the adjustment of
grievances'" within the meaning of § 8(b)(1)(B), Florida Power
& Light Co. v. Electrical Workers, 417 U.
S. 790, 417 U. S. 811,
n. 21 (1974). But in this case, Jones was to occupy the position of
equipment supervisor; it is enough if, in this position, he would
be authorized or expected to deal with grievances arising under the
collective bargaining agreement, American Broadcasting Cos. v.
Writers Guild, 437 U. S. 411,
437 U. S. 427,
n. 25 (1978); [Footnote 10]
and Jones' complaint
Page 460 U. S. 680
filed with the Regional Director indicated that he would have
collective bargaining responsibilities. It is at least arguable
that this was the case; and it was for the Board, not the state
courts, to decide whether Jones was the kind of a supervisor who
could invoke § 8(b)(1)(B). We thus agree with the Union and the
Board that the Union, if it was responsible for Jones' discharge,
arguably coerced the Company in the choice of its collective
bargaining representative.
IV
For several reasons, none of them sound in our view, the Georgia
Court of Appeals thought that the Act did not preempt the cause of
action that Jones submitted to the state courts. First, the Court
of Appeals may have interpreted the Regional Director's letter as
indicating that the Board lacked jurisdiction to adjudicate Jones'
complaint because of Jones' supervisory status. That is plainly not
the case, for the Regional Director's statement did not decline
jurisdiction, but addressed the merits of the complaint.
See
generally Garmon, 359 U.S. at
359 U. S.
245-246.
Second, the Court of Appeals believed that the Regional
Director's rejection of the complaint for insufficient evidence of
a violation satisfied all of the interests of the federal law and
cleared the way for a state cause of action. If this position was
grounded on the notion that supervisors do not have a cause of
action in any circumstances, it is contrary to Board cases and to
Perko. If, as seems more likely, the argument is that the
complainant adequately submitted his dispute to the Board, it is
untenable. Jones did not exhaust his administrative remedies, for
he did not appeal to the General Counsel. Beyond that, the
Garmon preemption doctrine not only mandates the
substantive preemption by the federal labor law in the areas to
which it applies, but also protects the exclusive jurisdiction of
the Board over matters arguably within the reach of the Act. Even
if Jones had satisfied ordinary primary jurisdiction requirements,
which he did not, he
Page 460 U. S. 681
would not have taken adequate account of the decision of
Congress to vest in one administrative agency nationwide
jurisdiction to adjudicate controversies within the Act's purview.
Matters within the exclusive jurisdiction of the Board are normally
for it, not a state court, to decide. This implements the
congressional desire to achieve
uniform as well as
effective enforcement of the national labor policy.
In addition to relying on the reasoning of the Georgia Court of
Appeals, Jones argues that there should be no preemption because
the state cause of action and the unfair labor practice charge are
not sufficiently alike. Jones relies on
Sears, Roebuck &
Co., where we said that "the critical inquiry" in deciding
whether a state claim is preempted because the challenged conduct
is arguably prohibited by the federal labor laws is
"whether the controversy presented to the state court is
identical to . . . or different from . . . that which could have
been, but was not, presented to the Labor Board."
436 U.S. at
436 U. S. 197.
Jones asserts that a § 8(b)(1)(B) unfair labor practice claim is
made out only by proving coercion of an employer in the selection
of its bargaining representative, whereas, he explains, to make out
his state cause of action, it need only be shown that the Union
caused, either coercively or noncoercively, the employer's
selection of a supervisor. Because federal law does not forbid
noncoerced but union-caused discharges, it is said that the state
cause of action is as distinct from the federal unfair labor
practice claim as were the causes of action this Court found not
preempted in
Linn v. Plant Guard Workers, 383 U. S.
53 (1966);
Farmer v. Carpenters, 430 U.
S. 290 (1977); and
Sears, Roebuck & Co. v.
Carpenters, supra. [
Footnote 11]
Page 460 U. S. 682
We reject this argument. First, the argument concedes that the
state cause of action is preempted to the extent that it covers
coercive influence on the employer, and we note that Jones'
complaint in the state court alleged that the Union agent had
"intimidated and coerced" Georgia Power into breaching its contract
with Jones. Jones thus sought to prove a coerced discharge and
breach of contract, the very claim that is concededly preempted.
Second, permitting state causes of action for noncoercive
interference with contractual relationships to go forward in the
state courts would continually require the state court to decide in
the first instance whether the Union's conduct was coercive, and
hence beyond its power to sanction, or noncoercive, and thus the
proper subject of a state suit. Decisions on such questions of
federal labor law should be resolved by the Board.
Third, even if the Georgia law reaches noncoercive interference
with contractual relationships, a fundamental part of such a claim
is that the Union actually caused the discharge, and hence was
responsible for the employer's breach of contract. Of course, this
same crucial element must be proved to make out a § 8(b)(1)(B)
case: the discharge must be shown to be the result of Union
influence. Even on Jones' view of the elements of his state law
cause of action, the federal and state claims are thus the same in
a fundamental respect, and here the Regional Director had concluded
that the Union was not at fault.
This was not the case in
Sears. There the state court
action was for trespass. It challenged only the location of the
Union picketing. The unfair labor practice charge, however, would
have focused on whether the picketing had recognitional or work
reassignment objectives, issues "completely
Page 460 U. S. 683
unrelated to the simple question whether a trespass had
occurred." 436 U.S. at
436 U. S. 198.
Permitting the trespass action to go forward accordingly created
"no realistic risk of interference with the Labor Board's primary
jurisdiction to enforce the statutory prohibition against unfair
labor practices."
Ibid. The same cannot be said here. The
Regional Director concluded that the Union had in no way been
responsible for Jones' discharge. That same issue of causation
would have been presented for decision had Jones' case come before
the Board, just as the issue would recurringly be at the core of §
8(b)(1)(B) cases. Despite the Regional Director's determination,
and the Board's undoubted jurisdiction to decide the issue had a
complaint issued, Jones sought to relitigate the question in the
state courts. The risk of interference with the Board's
jurisdiction is thus obvious and substantial.
We thus cannot agree that Jones' efforts to recover damages from
the Union for interference with his contractual relationships with
his employer was of only peripheral concern to the federal labor
policy. Our decisions in
Perko and its companion case,
Plumbers v. Borden, 373 U. S. 690
(1963), refute Jones' submission. They also foreclose any claim
that Jones' action against the Union for interference with his job
is so deeply rooted in local law that Georgia's interest in
enforcing that law overrides the interference with the federal
labor law that prosecution of the state action would entail.
Beyond this is the proposition, pressed by the Union, that,
although an employer may not be coerced in its choice of a
collective bargaining agent, employees have the protected right to
exert noncoercive influence on the choice of low-level
supervisors.
"[C]ourts have generally held over Board protest that employees'
strikes over changes in even low level supervisory personnel are
not protected.
See Henning Cheadle, Inc. v. NLRB, [522
F.2d 1050, 1055 (CA7
Page 460 U. S. 684
1975)];
American Art Clay Co. v. NLRB, [328 F.2d 88,
90-91 (CA7 1964)];
Dobbs Houses, Inc. v. NLRB, [325 F.2d
531, 538-539 (CA5 1963)]. On the other hand, courts have found
protected the writing of letters expressing opposition,
NLRB v.
Phoenix Mutual Life Insurance Co., 167 F.2d 983 (7th Cir.)
cert. denied, 335 U.S. 845 . . . (1948), or the simple
voicing of complaints,
NLRB v. Guernsey-Muskingum Elec. Coop.,
Inc., 285 F.2d 8 (6th Cir.1960). By thus examining both the
substantive interest and the means of advancing it, courts have
balanced more finely the competing interests involved. The result
is a general absence of
per se rules."
Abilities and Goodwill, Inc. v. NLRB, 612 F.2d 6, 9
(CA1 1979). Thus, had Jones' complaint come before the Board, his
complaint would arguably have been rejected on the ground that the
Union's conduct in this case was protected activity.
Finally, the argument is made that Jones should be permitted to
go forward in the state court because he could be awarded punitive
damages and attorney's fees, whereas he would be limited to backpay
if his complaint had gone forward before the Board. But such a
claim was squarely rejected in
San Diego Building Trades
Council v. Garmon, 359 U.S. at
359 U. S.
246-247.
The judgment below is accordingly
Reversed.
[
Footnote 1]
A supervisor is defined as follows:
"(11) The term 'supervisor' means any individual having
authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend such action,
if in connection with the foregoing the exercise of such authority
is not of a merely routine or clerical nature, but requires the use
of independent judgment."
§ 2(11), 61 Stat. 138. Supervisors are expressly excluded from
the definition of employee in § 2(3), 29 U.S.C. § 152(3). Only
"employees" are given rights under § 7, 29 U.S.C. § 157, which
provides in relevant part:
"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in section 8(a)(3)."
61 Stat. 140.
[
Footnote 2]
We refer to Jones as respondent because, as we shall explain,
see n 7,
infra, we review this case on writ of certiorari, rather
than on appeal.
[
Footnote 3]
Sections 8(a) and 8(b) define certain employer and union
practices as unfair labor practices. As pertinent to this case, §
8(b), 61 Stat. 141, 29 U.S.C. § 158(b), provides:
"It shall be an unfair labor practice for a labor organization
or its agents --"
"(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7 . . . or (B) an employer in the
selection of his representatives for the purposes of collective
bargaining or the adjustment of grievances;"
"(2) to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection (a)(3) of this
section . . ."
Section 8(a)(3), 61 Stat. 140, as amended, 29 U.S.C. §
158(a)(3), makes it an unfair labor practice for an employer --
"(3) by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage
membership in any labor organization. . . ."
[
Footnote 4]
The following is the text of the letter:
"July 19, 1978"
"Robert C. Jones"
"2954 Orchard Lane, S.E."
"Atlanta, Georgia 30354"
"Re: International Union of Operating"
"Engineers, Local 926"
"Case 10-CB-2905"
"Dear Mr. Jones:"
"The above-captioned case charging a violation under Section 8
of the National Labor Relations Act, as amended, has been carefully
investigated and considered."
"As a result of the investigation, it does not appear that
further proceedings on the charge are warranted. The Region
concluded that the evidence was insufficient to establish that the
Union caused your discharge or that it restrained or coerced the
Employer in the selection of its representative for the purposes of
collective bargaining. Rather, it appears that the Employer
implemented certain changes in its supervisory structure which
included your removal from the project. While the Union did
participate in discussions regarding the changes, there was no
evidence that it engaged in any unlawful conduct regarding your
status as a supervisor. I am, therefore, refusing to issue
complaint in this matter."
"Form NLRB-4938, Procedure for Filing an Appeal, is attached.
The appeal period expires at the close of business on August 1,
1978."
"Very truly yours,"
"/s/ Curtis L. Mack"
"Regional Director"
App. to Juris.Statement 26a.
[
Footnote 5]
Appeal to the General Counsel is provided by 29 CFR § 102.19
(1982). Respondent said he "didn't see much point" in taking such
an appeal. App. 105 (deposition of Robert C. Jones, Feb. 20,
1979).
[
Footnote 6]
The court affirmed the dismissal of the cause of action against
the employer. The merits of that decision are not before us.
[
Footnote 7]
Petitioners initially argued in their jurisdictional statement
that they were entitled to a mandatory appeal. They believed that
this case fell within 28 U.S.C. § 1257(2), which allows parties an
appeal as of right when a state statute is challenged in state
court as being repugnant to the laws of the United States and the
state court upholds the validity of the statute. The Georgia
right-to-work law, Ga.Code Ann. § 54-905 (1981), recodified at
Ga.Code Ann. § 34-6-24 (1982), was identified as the statute whose
validity had been wrongly upheld. Petitioners now acknowledge that
the Georgia Court of Appeals did not consider the question of
whether the NLRA prohibited Jones' reliance on the State's
right-to-work law; the court held only that the Georgia common law
tort action for interference with contractual relations was not
preempted by the national labor laws. Petitioners' current
perception appears correct. Because a common law cause of action
cannot be said to be a "statute" for purposes of § 1257(2), this
case is not within our § 1257(2) appellate jurisdiction.
[
Footnote 8]
The NLRA has been held to preempt state law and state causes of
action relating to conduct that is neither protected nor
prohibited, where it is determined that Congress intended the
conduct to be unregulated and left to the free play of economic
forces.
See Machinists v. Wisconsin Employment Relations
Comm'n, 427 U. S. 132,
427 U. S. 140
(1976);
Teamsters v. Morton, 377 U.
S. 252,
377 U. S. 260
(1964). This branch of the preemption doctrine is not at issue in
this case.
[
Footnote 9]
Since the Board's decision in
Local 725, it has become
evident that the Board will not adhere to the general proposition
voiced in
Perko that the discharge of a supervisor for
failure to abide by union rules is, alone, enough to discourage
employees from exercising their § 7 rights.
Parker-Robb
Chevrolet, Inc., 262 N.L.R.B. 402, 404 (1982). The Board
asserts, however, that the holding in
Local 725,
reflecting the peculiarities of the construction industry, survives
its later decision.
[
Footnote 10]
Recognizing that an employer so frequently draws his collective
bargaining representative from the existing pool of supervisors,
the Board has held that the Union violates § 8(b)(1)(B) by coercing
the choice of a supervisor even without proving that the supervisor
in question actually has collective bargaining authority. The Court
of Appeals for the Second Circuit has disagreed with the Board in
this respect.
NLRB v. Rochester Musicians Assn. Local 66,
514 F.2d 988, 992 (1975). The Court of Appeals for the Third
Circuit, on the other hand, has not entirely rejected the Board's
position.
Newspaper Guild, Erie Newspaper Guild, Local 187 v.
NLRB, 489 F.2d 416, 420-422 (1973).
[
Footnote 11]
In
Linn v. Plant Guard Workers, we held that an action
for a malicious and injurious libel in the course of a labor
dispute, although an unfair practice and prohibited by the Act, was
not preempted, since it was unprotected conduct and since remedying
injury to reputation was of only slight concern to the national
labor policy, and was a matter deeply rooted in state law. For
similar reasons, in
Farmer v. Carpenters, we held that,
insofar as the state court suit rested on claims of discriminatory
hiring hall referrals and breach of contract, it was preempted, but
that it was not preempted and could go forward insofar as it
alleged the outrageous and intentional infliction of emotional
distress. We deal with
Sears, Roebuck & Co. in the
text,
infra, this page and
460 U. S.
683.
JUSTICE REHNQUIST, with whom JUSTICE POWELL and JUSTICE O'CONNOR
join, dissenting.
I disagree with the Court's conclusion that the National Labor
Relations Act preempts the state law claims in this case. On
balance, I think the result reached by the Court is wrong, though
the question is a close one; more importantly, I cannot accept the
Court's analysis of our recent decision in
Sears, Roebuck &
Co. v. Carpenters, 436 U. S. 180
(1978).
Page 460 U. S. 685
Jones filed suit in the Georgia courts alleging that an agent of
Local 926 (Union) had
"maliciously and with full intent intimidated and coerced
Georgia Power . . or caused Georgia Power . . . to be intimidated
and coerced, into breaching its employment contract with
plaintiff."
In addition, Jones alleged, in an amendment to his complaint,
App. to Juris.Statement 18a-19a, 2a, that the Union and Georgia
Power Co. (Company) jointly conspired to interfere with his
contractual relations. The Court apparently acknowledges,
ante at
460 U. S. 682,
and I agree, that Jones' complaint fairly may be read as stating
two claims under Georgia tort law -- a claim that the Union
coerced the Company into firing Jones and a claim that the
Union
noncoercively caused his discharge. [
Footnote 2/1] The trial court dismissed Jones'
complaint, reasoning that the tort doctrines on which it rested
were preempted. The Georgia Court of Appeals reversed, ordering
reinstatement of Jones' complaint. 159 Ga.App. 693, 285 S.E.2d 30
(1981).
The Court recognizes that, if the conduct of the Union on which
Jones' complaint was predicated was "arguably prohibited" by the
Act, then the proper standard for preemption analysis is found in
Sears, Roebuck & Co. v. Carpenters, supra: is "the
controversy presented to the state court . . .
identical
to . . . or different from" the federal labor law claim.
Id. at
436 U. S. 197
(emphasis added). [
Footnote 2/2]
Other passages in
Page 460 U. S. 686
our
Sears opinion elaborate upon this rule, requiring,
for example, that a federal claim must be "
the same as the
controversy presented to the state court."
Id. at
436 U. S. 198;
see also id. at
436 U. S.
196-197.
The Court offers two basic arguments as to why Jones' claim of
noncoercive interference with contractual relations and the federal
labor law claims in this case were identical. [
Footnote 2/3] In doing so, it interprets the
"identical controversies" standard of
Sears in a new and
unjustified manner. The Court first reasons that
"permitting state causes of action for noncoercive interference
with contractual relationships to go forward in the state courts
would continually require the state court to decide in the first
instance whether the Union's conduct was coercive, and hence beyond
its power to sanction, or
Page 460 U. S. 687
noncoercive, and thus the proper subject of a state suit.
Decisions on such questions of federal labor law should be resolved
by the Board."
Ante at
460 U. S.
682.
This argument rests on a basic misunderstanding of our prior
decisions. In stating the "identical controversies" standard in
Sears, we said that a claim brought in state court is
unpreempted unless "the controversy presented to the state court is
identical to . . .
that which could have been, but was not,
presented to the Labor Board." 436 U.S. at
436 U. S. 197
(emphasis added). Plainly,
Sears envisioned that state
courts would decide in the first instance whether a particular
claim is preempted under the "identical" controversy standard.
Likewise,
Farmer v. Carpenters, 430 U.
S. 290 (1977) -- relied upon in
Sears'
formulation of the "identical" standard, 436 U.S. at
436 U. S. 197
-- indicated that state courts may, and in fact must, sort out
preempted from nonpreempted portions of a complaint, even when no
action before the Board has been taken.
See 430 U.S. at
430 U. S.
304-305. The
Farmer and
Sears models
are analogous to the situation presented in this case. Just as
state courts may distinguish the abusive
manner of
discrimination from discrimination itself, in cases modeled on
Farmer, supra, at
430 U. S. 305, and the pure trespass aspects of
picketing from the objectives of the same picketing in
Sears cases, they could distinguish claims of coercive
interference from those of noncoercive interference in cases like
this one. As
Farmer and
Sears hold, state courts
are competent to make such judgments without interfering with
federal labor law policy. In short, while it is correct that the
Board, and not state courts, is charged with deciding national
labor policy, it is equally clear that no such exclusive
jurisdiction is conferred on the Board with respect to questions of
preemption. [
Footnote 2/4]
Page 460 U. S. 688
The second argument relied on by the Court is that
"a fundamental part of . . . a [noncoercive interference with
contractual relations] claim is that the Union actually caused the
discharge. . . . [T]his same crucial element must be proved to make
out a § 8(b)(1)(B) case: the discharge must be shown to be the
result of Union influence. . . . [T]he federal and state claims are
thus the same in a fundamental respect. . . . "
Ante at
460 U. S.
682.
This view amounts to a substantial reformulation of the
Sears requirement that state and federal controversies be
identical before a claim based on arguably prohibited conduct is
preempted. On its face, the Court's definition of identical is
dubious: two items or concepts are not ordinarily thought to be
identical merely because they share a common element, or, in the
Court's words, because they are "the same in
a fundamental
respect,"
ante at
460 U. S. 682 (emphasis added). Moreover,
Sears
supports no such definition of identical.
Sears
illustrated the standard by reference to our decisions in
Farmer v. Carpenters, supra, which was given as an example
of "nonidentical" controversies, and
Garner v. Teamsters,
346 U. S. 485
(1953), representing controversies that are "identical."
See
Sears, Roebuck & Co. v. Carpenters, 436 U.S. at
436 U. S. 197.
Given the reference, it is worth examining
Farmer and
Garner in somewhat greater detail.
In
Farmer, one Richard Hill belonged to the local of a
national union, which operated a hiring hall. Hill was apparently
subjected to discrimination in job referrals from the hall, and to
a campaign of personal harassment. He filed suit in
Page 460 U. S. 689
state court claiming, first, that the local had discriminated
against him, and, second, that it had intentionally engaged in
conduct causing him emotional distress. We observed that "these
allegations of tortious conduct might form the basis for unfair
labor practice charges before the Board,"
Farmer v.
Carpenters, 430 U.S. at
430 U. S. 302,
and that Hill's tort claims were intertwined with "federally
prohibited discrimination," hence creating "a potential for
interference with the federal scheme of regulation."
Id.
at
430 U. S.
304.
Despite this inevitable overlap between state and federal
claims, we held that Hill's claim of intentional infliction of
emotional distress was not preempted. We relied on the fact that
the state and federal claims --
despite sharing related factual
bases -- would have had different "focus[es]."
Ibid.
Resolution of the state claim would turn on the abusiveness of the
defendant's conduct, while the federal claim turned on whether
"Union officials discriminated . . . against [Hill]."
Ibid. Because the state claim required "something more"
than the federal claim,
id. at
430 U. S. 305,
we concluded in
Sears that the two claims were not
identical. [
Footnote 2/5]
The Court's reformulation of the "identical" controversies
standard of
Sears -- claims are identical if they share an
important
Page 460 U. S. 690
factual element -- is inconsistent with both
Sears and
Farmer. In
Sears, the federal and state claims
involved several common, fundamental factual questions -- whether
any picketing had occurred; if so, where; and whether the property
owner consented to it or not. These basic factual determinations,
which the state courts and Board might resolve differently, would
be critical to deciding both unfair labor practice claims and state
trespass claims. Likewise, in cases following the
Farmer
model, state courts may make credibility determinations regarding
whether any discrimination occurred, and if so, whether it did so
in a manner supporting a claim for intentional infliction of
emotional distress. The same factual issues would be involved in
deciding an unfair labor practice charge under § 8 of the Act. Our
decisions in
Farmer and
Sears thus make clear
that the mere risk of differing factual determinations by the Board
and state courts is insufficient to require preemption.
Accordingly, the Court's reliance on the fact that the state and
federal controversies at issue here are the same in one respect is
misplaced. Instead,
Sears and
Farmer demand a
more searching inquiry into the relationship between state and
federal controversies.
While recognizing that the question is not free from doubt, I
would conclude that the state and federal controversies at issue
here are not identical, and, therefore, that Jones' claims are not
preempted. The evident purpose of § 8(b)(1)(A) is to safeguard
employees in their right, secured by § 7 of the Act, to join or
refrain from joining concerted actions,
see NLRB v. Boeing
Co., 412 U. S. 67,
412 U. S. 71
(1973). The Board's most recent discussion of the ability of a
supervisor to assert a claim under § 8(a)(1) states:
"The discharge of supervisors is unlawful when it interferes
with the right of employees to exercise their rights under Section
7 of the Act, as when they give testimony adverse to their
employers' interest or when they refuse to commit unfair labor
practices. The discharge of supervisors
Page 460 U. S. 691
as a result of their participation in union or concerted
activity -- either by themselves or when allied with rank-and-file
employees -- is not unlawful, for the simple reason that employees,
but not supervisors, have rights protected by the Act."
Parker-Robb Chevrolet, Inc., 262 N.L.R.B. 402, 404
(1982). In order for a supervisor, such as Jones, to make a claim
under § 8(b)(1)(A), therefore, he must show not only that his
contractual relations were interfered with, but that, because of
this, the various rights guaranteed by § 7 of the Act to other
persons -- actual employees -- were interfered with. This
"entail[s] relatively complex factual and legal determinations" --
such as what the rights of those employees are, how they were
interfered with by action directed at Jones, and so forth --
"completely unrelated to the simple question" whether Jones can
show that the Union caused him to lose his job,
see Sears,
Roebuck & Co. v. Carpenters, 436 U.S. at
436 U. S. 198.
Because of these different factual issues, which reveal basically
different focuses of policy, I do not think that Jones' state law
claims are preempted by § 8(b)(1)(A). [
Footnote 2/6]
In order to state a claim under § 8(b)(1)(B), a supervisor must
show coercion of his employer in the choice of bargaining
representatives. The provision
"reflect[s] a clearly focused congressional concern with the
protection of employers
Page 460 U. S. 692
in the selection of representatives to engage in two particular
and explicitly stated activities."
Florida Power & Light Co. v. Electrical Workers,
417 U. S. 790,
417 U. S. 803
(1974) (emphasis added).
"Congress was
exclusively concerned with union attempts
to dictate to employers who would represent them in collective
bargaining and grievance adjustment."
Ibid. (emphasis added). In contrast, in order to make
out a claim of intentional interference with contractual relations,
the question whether the plaintiff was to act as a bargaining
representative, or any other particular kind of employee, is
entirely irrelevant. Likewise, the question whether the employer --
with whose interests § 8(b)(1)(B) of the Act is "exclusively
concerned" -- is harmed by interference with an employee's
contractual relationship is irrelevant to the state cause of
action. As in
Sears, the state court action will focus on
a far simpler and neater set of facts than would an action before
the Board. [
Footnote 2/7] Because
of these differences between the controversies that the Board would
decide and those that state courts would decide, I am persuaded
that Jones' state claims were not preempted. [
Footnote 2/8]
[
Footnote 2/1]
The Georgia Court of Appeals also took this view of Jones' state
law complaint:
"A ruling that the union was found
not to have
'coerced' an employer in the selection of the employer's
representative under the Act does not preclude this suit based on
malicious
interference with an employment contract."
159 Ga.App. 693, 697, 285 S.E.2d 30, 33 (1981).
[
Footnote 2/2]
The Court, while observing that the decision in
Iron Workers
v. Perko, 373 U. S. 701
(1963), involved a factual situation very similar to that in this
case, also recognizes that
Perko's preemption analysis is
no longer dispositive. In
Perko, the mere fact that a
state claim was based upon arguably prohibited conduct dictated the
conclusion that the state claim was preempted.
Id. at
373 U. S. 708
("It is enough to hold, as we do, that it is plain on a number of
scores that the subject matter of this lawsuit
arguably' comes
within the Board's jurisdiction to deal with unfair labor
practices"). This type of rigid interpretation of San Diego
Building Trades Council v. Garmon, 359 U.
S. 236 (1959), does not survive our more recent
decisions in Sears, Roebuck & Co. v. Carpenters,
436 U. S. 180
(1978); Farmer v. Carpenters, 430 U.
S. 290 (1977); Linn v. Plant Guard Workers,
383 U. S. 53
(1966). As one commentator has remarked, "the Garmon test
can now be described only by reference to its exceptions." Bryson,
A Matter of Wooden Logic: Labor Law Preemption and Individual
Rights, 51 Texas L.Rev. 1037, 1041 (1973).
[
Footnote 2/3]
The Court also reasons that Jones
"concedes that [his] state cause of action is preempted to the
extent that it covers coercive influence on the employer, and we
note that Jones' complaint in the state court alleged that the
Union agent had 'intimidated and coerced' Georgia Power into
breaching its contract with Jones. Jones thus sought to prove a
coerced discharge and breach of contract, the very claim that is
concededly preempted."
Ante at
460 U. S. 682.
This argument, of course, applies only to that portion of Jones'
complaint that is based on coercive conduct, not on noncoercive
conduct,
see 460
U.S. 669fn2/1|>n. 1,
supra, and accompanying text.
Even as to coercive conduct,
see infra at
460 U. S.
688-692, the argument is unpersuasive: it rests on the
assumption that Jones' argument implicitly concedes that his
coercive interference claim is identical to the controversy that
the Board would resolve under §§ 8(b)(1)(A) and (B). I do not find
any indication in respondent's brief of such a concession, and for
the reasons given
infra at
460 U. S.
688-692, I believe that Jones' coercive interference
claim, like his noncoercive interference claim, was sufficiently
distinguishable from the unfair labor practice charges at issue to
avoid preemption.
[
Footnote 2/4]
A state law claim for intentional interference with contractual
relations is as deeply rooted in and important to local concerns as
the claims involved in
Farmer and
Sears. In
Farmer v. Carpenters, supra, at
430 U. S.
302-303, we noted that, while the tort of intentional
infliction of emotional distress was of comparatively recent
origins, a State nonetheless "has a substantial interest" in
protecting "the health and wellbeing of its citizens." Georgia has
long sought to protect the right of its citizens "to earn a
livelihood, and to seek redress against anyone who wrongfully
causes him to be discharged from employment."
Wiley v. Georgia
Power Co., 134 Ga.App. 187, 190,
213 S.E.2d
550, 553 (1975),
Southern R. Co. v. Chambers, 126 Ga.
404, 55 S.E. 37 (1906). There can be no doubt that safeguarding the
integrity of contractual relations is an interest of paramount
importance in an economy such as ours.
[
Footnote 2/5]
In contrast,
Garner v. Teamsters involved truly
indistinguishable state and federal claims. The state statute at
issue, titled the "Pennsylvania Labor Relations Act," prohibited
certain types of union coercion in "language almost
identical to" the NLRA. 346 U.S. at
346 U. S. 488
(emphasis added). (In
Sears, we noted that laws expressly
governing labor relations are "more likely to involve the
accommodation [of employee and employer interests] which Congress
reserved to the Board." 436 U.S. at
436 U. S. 198,
n. 27.) Likewise, the subject of the state and federal suits in
Garner was labeled by the Court as "the
same
controversy," 346 U.S. at
346 U. S. 489
(emphasis added), and the Pennsylvania Supreme Court believed that
the two suits involved "
correction of the identical
grievance.'" Id. at 346 U. S. 486,
quoting Garner v. Teamsters, 373 Pa.19, 28, 94 A.2d 893,
898 (1963) (emphasis added). Garner, then, offers no
support for the notion that claims may be "identical" for the
purposes of Sears merely because they share the
requirement of proof of certain facts; instead, our reliance upon
the case in Sears stands only for the principle that
identical really means identical.
[
Footnote 2/6]
The policies effectuated by § 8(b)(1)(A) and the state tort
sanction against intentional interference with contractual
relations are entirely different. The former seeks to protect
employees' right to
"self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, . . . to refrain from any or all of such activities. .
. ."
29 U.S.C. § 157. The latter, however, is entirely unconcerned
with these employee rights to concerted action; the state law
instead seeks to protect a form of property -- one's contractual
relations with another.
Cf. Nottingham v. Wrigley, 221 Ga.
386, 388,
144 S.E.2d
749, 751 (1965). This concern with property rights is not
unlike the state claim in
Sears, which involved a state
law trespass action.
[
Footnote 2/7]
Insofar as Jones' claim for noncoercive interference with
contractual relations is concerned, the differences between the
state and federal controversies would be even more marked. The
controversy before the Board would involve difficult issues of
coercion, while that in the state courts would focus merely on
causation.
[
Footnote 2/8]
I do not address the question, not faced by the Court, whether
the proper disposition of the case is dismissal for want of a final
judgment.