Local 926, International Union of Operating Engineers v. Jones
Local 926, International Union of Operating Engineers v. Jones
Opinion of the Court
delivered the opinion of the Court.
This case presents the question whether a state-court action brought by one who is a “supervisor”
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Respondent Robert C. Jones
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.
Instead of appealing to the General Counsel,
The Georgia trial court dismissed the complaint, concluding that the common-law tort action had been pre-empted 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.
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.
The issue before us “is a variant of a familiar theme.” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 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
We concluded that Perko’s common-law cause of action was pre-empted 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.
Ill
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 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
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For several reasons, none of them sound m 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 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 pre-emption doctrine not only mandates the substantive pre-emption 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
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 pre-empted 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 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.
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 recogni-tional or work reassignment objectives, issues “completely
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.
“[CJourts 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*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 246-247.
The judgment below is accordingly
Reversed.
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.
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.
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 . . . .”
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
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.
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).
The court affirmed the dismissal of the cause of action against the employer. The merits of that decision are not before us.
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 pre-empted 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.
The NLRA has been held to pre-empt 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, 140 (1976); Teamsters v. Morton, 377 U. S. 252, 260 (1964). This branch of the pre-emption doctrine is not at issue in this case.
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.
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).
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 pre-empted 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
Dissenting Opinion
with whom Justice Powell and Justice O’Connor join, dissenting.
I disagree with the Court’s conclusion that the National Labor Relations Act pre-empts 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).
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 pre-emption 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 197 (emphasis added).
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.
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 unpre-empted 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 197 (emphasis added). Plainly, Sears envisioned that state courts would decide in the first instance whether a particular claim is pre-empted 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 197 — indicated that state courts may, and in fact must, sort out pre-empted from nonpre-empted portions of a complaint, even when no action before the Board has been taken. See 430 U. S., at 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 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 pre-emption.
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 pre-empted. 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 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 197. Given the reference, it is worth examining Farmer and Gamer 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
Despite this inevitable overlap between state and federal claims, we held that Hill’s claim of intentional infliction of emotional distress was not pre-empted. 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 305, we concluded in Sears that the two claims were not identical.
The Court’s reformulation of the “identical” controversies standard of Sears — claims are identical if they share an im
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 pre-empted. 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, 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 su*691 pervisors 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 198. Because of these different factual issues, which reveal basically different focuses of policy, I do not think that Jones’ state-law claims are pre-empted by § 8(b)(1)(A).
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
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).
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 pre-emption analysis is no longer dis-positive. In Perko, the mere fact that a state claim was based upon arguably prohibited conduct dictated the conclusion that the state claim was pre-empted. Id,., at 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 prac
The Court also reasons that Jones “concedes that [his] state cause of action is pre-empted 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 682. This argument, of course, applies only to that portion of Jones’ complaint that is based on coercive conduct, not on nonco-ercive conduct, see n. 1, supra, and accompanying text. Even as to coercive conduct, see infra, at 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 688-692,1 believe that Jones’ coercive interference claim, like his noncoer-eive interference claim, was sufficiently distinguishable from the unfair labor practice charges at issue to avoid pre-emption.
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 302-303, we noted that while the tort of intentional infliction of emotional
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 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 198, n. 27.) Likewise, the subject of the state and federal suits in Gamer was labeled by the Court as “the same controversy,” 346 U. S., at 489 (emphasis added), and the Pennsylvania Supreme Court believed that the two suits involved “ ‘correction of the identical grievance.’ ” Id., at 486, quoting Garner v. Teamsters, 373 Pa. 19, 28, 94 A. 2d 893, 898 (1953) (emphasis added). Gamer, 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.
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.
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.
1 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.
Reference
- Full Case Name
- LOCAL 926, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Et Al. v. JONES
- Cited By
- 210 cases
- Status
- Published