author: Justice Marshall

text:
    TUTEN v. UNITED STATES
    No. 81-6756.
    Argued March 1, 1983
    Decided March 30, 1983
    Marshall, J., delivered the opinion for a unanimous Court.

      Linda Gillespie Stuntz argued the cause for petitioner. With her on the briefs was Erwin N. Griswold.

      Barbara E. Etkind argued the cause for the United States. With her on the brief were Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, and Kathleen A. Felton.

   Justice Marshall

delivered the opinion of the Court.

This case presents the question whether a conviction upon which a youth offender was sentenced to probation under the Federal Youth Corrections Act of 1950, 18 U. S. C. §5005 et seq., was automatically set aside after he served his full term of probation.

I

In 1971 petitioner Melvin Tuten, who was 19 years old, pleaded guilty to the charge of carrying a pistol without a license in violation of D. C. Code §22-3204 (1981). He was placed on probation for two years under the Federal Youth Corrections Act of 1950 (YCA), 18 U. S. C. § 5005 et seq. At the end of the 2-year probationary period, petitioner was unconditionally discharged from the YCA program.

In 1980 petitioner was tried and convicted of carrying a pistol without a license under the same provision of the D. C. Code. The prosecutor urged that petitioner’s previous conviction made him subject to the enhanced penalty provided by D. C. Code § 22-3204 (1981) for one who previously “has been convicted in the District of Columbia of a violation of this section.” The trial judge agreed and, based on the earlier conviction, sentenced petitioner as a felon rather than a misdemeanant. The judge imposed a sentence of two to six years’ imprisonment.

On appeal to the District of Columbia Court of Appeals, petitioner contended that the earlier conviction could not properly provide the basis for his being sentenced as a recidivist because that conviction had been expunged under the YCA, § 5021(b), following his successful completion of the 2-year probationary term. The court rejected this assertion and affirmed the sentence. 440 A. 2d 1008 (1982). It relied primarily upon the “ordinary meaning” of the language of § 5021. 440 A. 2d, at 1013. Section 5021 provides:

“(a) Upon the unconditional discharge by the Commission of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the Commission shall issue to the youth offender a certificate to that effect.
“(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect.”

The court concluded that the automatic set-aside provision of subsection (b) applies only to a youth offender who receives an unconditional discharge before the expiration of his probationary period. The court also stated that “the legislative history contains no persuasive reasons” to depart from the ordinary meaning of the statutory language, and noted that “the case law and public policy support the plain meaning of the statute.” 440 A. 2d, at 1013. We granted certiorari, 459 U. S. 905 (1982), and we now affirm.

This Court has in previous decisions described and analyzed the YCA in considerable detail in the course of deciding particular issues arising under the Act. See Ralston v. Robinson, 454 U. S. 201 (1981); Durst v. United States, 434 U. S. 542 (1978); Dorszynski v. United States, 418 U. S. 424 (1974). The Act generally applies to persons under 22 years of age at the time of their conviction who are sentenced in federal courts or in courts of the District of Columbia. “[T]he principal purpose of the YCA is to rehabilitate persons who, because of their youth, are unusually vulnerable to the danger of recidivism.” Ralston v. Robinson, supra, at 206. To achieve this purpose, the Act gives courts a number of alternatives in sentencing youth offenders. First, a court may commit a youth offender to the custody of the Attorney General for institutional treatment and supervision under the Act. 18 U. S. C. §§ 5010(b) and (c). The Act affords the Attorney General a broad range of discretion in providing institutional treatment, which includes educational and vocational training as well as psychiatric counseling. §§ 5006(g), 5011, 5013. See Dorszynski, supra, at 434. Second, if the court finds, as it did in this case, that a youth offender does not need to be committed to custody, it may place him on probation under the supervision of a probation officer or supervisory agent. § 5010(a). Finally, if the court finds that the defendant will not benefit from rehabilitative treatment, it may sentence him under any of the penalty provisions applicable to adult offenders. § 5010(d).

As we noted in Durst v. United States, supra, at 548, “[a] particularly valuable benefit for the offender sentenced under the YCA is the prospect of obtaining a certificate setting aside his conviction” under § 5021 of the Act. Congress’ purpose in adopting § 5021 was to promote the rehabilitation of youth offenders by providing a substantial incentive for positive behavior while serving a sentence under the YCA. Congress recognized that a criminal conviction often carries with it numerous civil and social disabilities. For example, a conviction may result in the loss of the rights to vote, to hold a public office, to serve on a jury, and to practice various occupations and professions. As in this case, a conviction may also make an offender subject to increased penalties for subsequent convictions. Like various state expungement statutes, § 5021 enables an eligible youth offender to reenter society and conduct his life free from the disabilities that accompany a criminal conviction. Dorszynski, supra, at 429, n. 6.

Until 1961, the YCA’s set-aside provision was applicable only to a youth who was committed to the custody of the Attorney General under § 5010(b) or § 5010(c) and was unconditionally discharged prior to expiration of the maximum sentence imposed. It was not applicable to an offender who, like petitioner, was sentenced initially to probation rather than to confinement. The YCA was amended in 1961 to add § 5021(b), Pub. L. 87-336, 75 Stat. 750, in order to correct this inconsistency in the Act. See H. R. Rep. No. 433, 87th Cong., 1st Sess., 1 (1961); S. Rep. No. 1048, 87th Cong., 1st Sess., 1 (1961). Under § 5021(b), youth offenders sentenced initially to probation under § 5010(a) are afforded an opportunity to have their convictions set aside similar to that which had previously been afforded only to youth offenders sentenced under §§ 5010(b) and (c).

We are now asked to decide when § 5021 requires the setting aside of the conviction of a youth offender who has been placed on probation. Petitioner maintains that after a youth offender successfully completes the term of probation to which he was initially sentenced, his conviction must be automatically set aside under § 5021(b). As the court below noted, however, this interpretation is contrary to the language of the statute itself, which provides that a “discharge shall automatically set aside the conviction” if the court “unconditionally discharge^] [the] youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court” (emphasis added). The clear import of § 5021(b) was described by this Court in Durst. “[Section 5021(b)] extend[s] the benefit of a certificate [setting aside the conviction] to youths sentenced to probation under § 5010(a) when the court unconditionally discharges the youth prior to expiration of the sentence of probation imposed.” 434 U. S., at 548 (emphasis added). See also Dorszynski, 418 U. S., at 435. Statements in the legislative history of the 1961 amendment echo the language of § 5021(b) limiting the set-aside to youth offenders discharged before their original probationary terms expire.

Under the interpretation of § 5021(b) plainly suggested by the language of the statute, the conviction of a youth offender who has been placed on probation under § 5010(a) is not set aside where, as here, the court has not exercised its discretion to discharge him unconditionally “prior to the expiration of the maximum period of probation theretofore fixed by the court,” which in this case was two years. This limitation is fully consistent with the rehabilitative purposes of the YCA as well as with Congress’ intent to employ the set-aside as an incentive for positive behavior by youths sentenced under the Act. The incentive might be significantly weaker if convictions were set aside regardless of whether the youth offender, by his conduct during the probationary period, had convinced the sentencing court to discharge him before the expiration of his probationary term. Although it would also have been reasonable for Congress to make the set-aside available to any youth offender who completes probation without incident, this result is certainly not compelled by the purposes of the Act. Moreover, the remedial purposes of the Act are not frustrated by the possibility that a court may inadvertently fail to grant an early unconditional discharge. A youth offender who believes that the sentencing court’s failure to grant an early unconditional discharge from probation was an oversight may, following the completion of his probationary period, move that court to exercise its discretion to grant him an early unconditional discharge nunc pro tunc and to set aside his conviction. See United States v. Fryer, 545 F. 2d 11, 13, n. 3 (CA6 1976).

In short, the language of § 5021(b), the legislative history, and the rehabilitative purposes of the YCA all point to a single conclusion: that petitioner’s previous conviction was not set aside under § 5021(b) because he was unconditionally discharged from probation upon the completion, not prior to the completion, of the 2-year term of probation to which he was initially sentenced under § 5010(a). The trial court was therefore free in this case to take petitioner’s previous conviction into account in imposing sentence under the recidivist provision of the District of Columbia’s penal statute. Accordingly, the judgment of the District of Columbia Court of Appeals is

Affirmed.

       Section 22-3204 provides:
      “No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without a license therefor issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in §22-8215 [by a fine of not more than $1,000, or imprisonment for not more than one year, or both], unless the violation occurs after he has been convicted in the District of Columbia of a violation of this section or of a felony, either in the District of Columbia or in another jurisdiction, in which case he shall be sentenced to imprisonment for not more than 10 years.”

       Two courts have expressed a contrary view. See United States v. Arrington, 618 F. 2d 1119, 1124 (CA5 1980), cert. denied, 449 U. S. 1086 (1981); United States v. Sinkfield, 484 F. Supp. 695, 598 (ND Ga. 1980). Cf. United States v. Villar, 416 F. Supp. 887, 889 (SDNY 1976).

       18 U. S. C. § 5006(e). As we noted in Dorszynski v. United States, 418 U. S. 424, 433, n. 9 (1974), the Act also applies in some circumstances to certain convicted persons between the ages of 22 and 26. 18 U. S. C. § 4216. It ordinarily does not apply to convicted persons under the age of 18, who are eligible for sentencing under the Federal Juvenile Delinquency Act, 18 U. S. C. § 5031 et seq. (1976 ed. and Supp. V). It also does not apply to certain multiple offenders in the District of Columbia. D. C. Code § 22 — 3202(d)(1) (1981).

       18 U. S. C. §5024.

       See also H. R. Rep. No. 2979, 81st Cong., 2d Sess., 4 (1950); United States v. Ward, 337 F. Supp. 185, 193 (DC 1971). Cf. Narcotic Addict Rehabilitation Act of 1966, 18 U. S. C. § 4251(c).

       See, e. g., Hearings on S. 1114 and S. 2609 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess., 14 (1949) (testimony of Judge Laws). Congress reaffirmed this goal when it extended §5021 to youth offenders initially sentenced to probation. See infra, at 665-666. Senator Dodd, who sponsored the 1961 amendment, explained that the provision “provides an additional incentive for maintaining good behavior by holding out to the youth an opportunity to clear his record.” 107 Cong. Rec. 8709 (1961).

       See generally Special Project — The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929 (1970); S. Rubin, H. Weihofen, G. Edwards, & S. Rosenzweig, The Law of Criminal Correction 611-632 (1963); P. Tappan, Loss and Restoration of Civil Rights of Offenders, in National Probation and Parole Association, Crime Prevention Through Treatment 86-104 (1952).

       See, e. g., Cal. Penal Code Ann. § 1203.45 (West 1982); Kan. Stat. Ann. §21-4619 (1981); Minn. Stat. §242.31 (1982).

       See, e. g., Hearings, supra n. 6, at 14 (testimony of Judge Laws) (“Committed youth offenders who earn their final discharge before the end of their maximum term have their records cleared and all their civil rights restored”); id., at 117 (letter from Judge Wyche) (“I believe that a boy who makes one mistake should be permanently forgiven that mistake if his subsequent conduct indicates that he has changed his behavior. One blot on his record may cause him great harm when he applies for a position in later years”). See also United States Board of Parole Ann. Rep. 30 (1962) (“It was the intention of the authors of the statute that such setting aside of conviction action would, in fact, expunge the record of that conviction”). Of course, federal legislation may impose disabilities even on persons whose convictions have been expunged. See Dickerson v. New Banner Institute, Inc., ante, p. 103.

       Generally, a youth offender would be considered for an early discharge under § 5017 if there was a reasonable probability that the youth offender would remain free from further law violations. See United States Board of Parole, supra, at 30.

       See, e.g., H. R. Rep. No. 433, 87th Cong., 1st Sess., 2-3 (1961); S. Rep. No. 1048, 87th Cong., 1st Sess., 2-3 (1961).
      The only suggestion to the contrary contained in the legislative history is a statement of Senator Dodd, who introduced the bill to amend 18 U. S. C. § 5021 which was ultimately enacted as Pub. L. 87-336, 75 Stat. 750. See supra, at 665 and this page. Describing the law as it existed before the addition of subsection (b), he stated:
      “Under section 5021 of title 18, a committed youth who is unconditionally discharged before the expiration of the maximum sentence imposed upon him automatically has his conviction set aside. No such provision exists for the youth who is released from probation. His conviction remains on

        the record until the original sentence expires. The law, as it stands now, discriminates against the youth on probation who is generally charged with a lesser offense.” 107 Cong. Rec. 8709 (1961) (emphasis added).
      This remark implies that prior to the adoption of § 5021(b), the conviction of a youth offender who was sentenced to probation would automatically be set aside after his original term of probation expired. There is nothing in the Act that so provided, however. Nor is there any support in the prior legislative history of the Act or in the past practices of courts or agencies under the Act to justify this understanding. Indeed, the suggestion that convictions under the YCA are automatically set aside after the original sentence expires is flatly contradicted by Senator Dodd’s subsequent observation that § 5021 only “hold[s] out to the youth an opportunity to clear his record,” ibid, (emphasis added), as well as by statements contained in the Report submitted by Senator Dodd a few months later. See S. Rep. No. 1048, supra. We are therefore unwilling to assume that Congress would have relied on the isolated remark spoken on the floor of the Senate when it amended § 5021.

       Prior to the expiration of a youth offender’s term of probation, a probation officer is required to file a report evaluating the probationer’s conduct and progress and reminding the court that an early unconditional discharge will automatically set aside the conviction. See, e. g., Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures: Probation Manual, Vol. X-A, § 5011 (1980). Such procedures ensure that the court is made aware of its duty to decide whether granting an early unconditional discharge is warranted in light of the remedial ends of the YCA.

       A person sentenced under a recidivist statute on the basis of a prior conviction that is subsequently set aside under such a procedure can move for a reduction of sentence from the second sentencing court. See, e. g., Fed. Rule Crim. Proc. 35; D. C. Super. Ct. Crim. Rule 35(a).


source: Caselaw Access Project

author: Justice White Justice Rehnquist,

license: Public Domain

text:
    LOCAL 926, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, et al. v. JONES
    No. 81-1574.
    Argued December 1, 1982
    Decided April 4, 1983

      .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’Con-nor, JJ., joined, post, p. 684.

      Laurence Gold argued the cause for appellants. With him on the briefs were Joseph Jacobs, Harris Jacobs, James T. Langford, and George Kaufmann.

      Elinor Hadley Stillman argued the cause for the National Labor Relations Board as amicus curiae urging reversal. With her on the brief were Solicitor General Lee, Norton J. Come, and Linda Sher.

      Robert F. Gore argued the cause and filed a brief for appellee.
   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” 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 pre-empted by the National Labor Relations Act (NLRA or Act).

r — H

Respondent Robert C. Jones 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.

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. 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. He explained 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, 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 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 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. 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 pre-empted because Georgia had a deep and abiding interest in protecting its citizens’ contractual rights and because the cause of action, which sounded in 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. We agree, but, treating the papers as a petition for writ of certio-rari, we grant the petition. Concluding that the Georgia Court of Appeals erred, we reverse.

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 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 pre-emption 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 245; see Sears, supra, at 187-190. Although the “Garmon guidelines [are not to be applied] in a literal, mechanical fashion,” Sears, supra, at 188, if the conduct at issue is arguably prohibited or protected otherwise applicable state law and procedures are ordinarily pre-empted. Farmer, supra, at 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 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 188-189; Farmer, supra, at 297.

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 pre-empted 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 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.

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.

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 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. 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, 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, 427, n. 25 (1978); and Jones’ complaint 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.

h-4 <

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 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 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.

We reject this argument. First, the argument concedes that the 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 pre-empted. 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 recogni-tional or work reassignment objectives, issues “completely unrelated to the simple question whether a trespass had occurred.” 436 U. S., at 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.

“[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 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.

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 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).

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 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. The trial court dismissed Jones’ complaint, reasoning that the tort doctrines on which it rested were pre-empted. 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 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). Other passages in 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 198; see also id., at 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. 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 non-coercive 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.” Ante, at 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 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.

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 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 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 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 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 304.

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 important 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 pre-emption. 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 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 supervisors 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 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, 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. 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 pre-empted.

       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

        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.

       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 the state-court suit rested on claims of discriminatory hiring hall referrals and breach of contract, it was pre-empted, but that it was not pre-empted 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 683.

       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 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).

       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 distress was of comparatively recent origins, a State nonetheless “has a substantial interest” in protecting “the health and well-being 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.

       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.


author: Justice Powell

text:
    METROPOLITAN EDISON CO. v. NATIONAL LABOR RELATIONS BOARD et al.
    No. 81-1664.
    Argued January 11, 1983
    Decided April 4, 1983

      Powell, J., delivered the opinion for a unanimous Court.

      Donald F. Sileo argued the cause for petitioner. With him on the briefs was Anthony A. DeSabato.

      Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Lee, Deputy Solicitor General Wallace, Jerrold J. Ganzfried, Robert E. Allen, Linda Sher, and Elinor Had-ley Stillman. Laurence J. Cohen argued the cause for respondent Local Union 563, IBEW. With him on the brief were Richard Kirschner, Marsha Berzon, and Laurence Gold

      Briefs of amici curiae urging reversal were filed by Peter D. Walther, Mark M. Wilcox, and Stephen A. Bokat for the Chamber of Commerce of the United States; by Lawrence T. Zimmerman, Steven R. Semler, and Robert L. Baum for the Edison Electric Institute; and by Mallory Erie Phillips, Jr., and Mark E. Edwards for Miller Brewing Co.

   Justice Powell

delivered the opinion of the Court.

The issue is whether an employer may discipline union officials more severely than other union employees for participating in an unlawful work stoppage.

Metropolitan Edison Company began construction of a two-unit nuclear generating station at Three Mile Island in 1968. Over half of its employees were represented by the International Brotherhood of Electrical Workers. Article XI of the collective-bargaining agreement between the company and the union provided:

“The Brotherhood and its members agree that during the term of this agreement there shall be no strikes or walkouts by the Brotherhood or its members, and the Company agrees that there shall be no lockouts of the Brotherhood or its members, it being the desire of both parties to provide uninterrupted and continuous service to the public.” App. to Pet. for Cert. A-32.

Despite this no-strike clause, union members participated in four unlawful work stoppages between 1970 and 1974. On each occasion the company disciplined the local union officials more severely than the other participants. Twice the union filed a grievance because of the disparate treatment accorded its officials, and in both cases the arbitrators upheld the company’s actions. They found that union officials have an affirmative duty to uphold the bargaining agreement. The breach of that duty justified the company’s imposition of more severe sanctions.

On August 30, 1977, an unrelated union, the Operating Engineers, set up an informational picket line at the entrance to the Three Mile Island construction site. When members of the Electrical Workers union refused to cross the picket line, company officials spoke to David Lang, the local union president. They told him that he had a duty as a union official to ensure that the Electrical Workers’ members complied with the no-strike clause. It was the company’s view that Lang could fulfill this duty only by crossing the picket line and thereby inducing other employees to follow.

Although instructed repeatedly to cross the line, Lang declined to do so. He was aware that the other employees were unlikely to follow him and sought instead to learn the cause of the picket line. On being told that the line would not be removed unless the Operating Engineers’ business agent ordered it, Lang attempted to reach him. He also directed Gene Light, the Electrical Workers’ vice president, to continue his efforts to persuade the pickets to remove their line. After approximately four hours, Light and Lang were able to negotiate a settlement between the Operating Engineers and Metropolitan Edison. The settlement required the company to establish a separate entrance to the construction site. When this was done, the picket line came down and the union’s members returned to work.

Metropolitan Edison disciplined all of its employees who refused to cross the picket line by imposing 5- to 10-day suspensions. Light and Lang, however, each received 25-day suspensions and were warned that future participation in any unlawful work stoppage would result in their immediate discharge. The company explained that the additional penalty was imposed because of their failure as union officials to make “every bona fide effort to prevent the unlawful work stoppage,” specifically their failure to attempt to end the strike by crossing the picket line.

The union filed an unfair labor practice charge, and the Regional Director for the National Labor Relations Board issued a complaint against the company. The Administrative Law Judge concluded that under Precision Castings Co., 233 N. L. R. B. 183 (1977), selective discipline of union officials violated §§ 8(a)(1) and (3) of the National Labor Relations Act, 61 Stat. 140, as amended, 29 U. S. C. §§ 158(a)(1) and (3). The Board affirmed the Administrative Law Judge’s conclusions and findings. Metropolitan Edison Co., 252 N. L. R. B. 1030 (1980).

On petition for review and cross-petition for enforcement, the Court of Appeals for the Third Circuit enforced the Board’s order. 663 F. 2d 478, 484 (1981). It held that an employer may impose greater discipline on union officials only when the collective-bargaining agreement specifies that the officials have an affirmative duty to prevent illegal work stoppages. Id., at 482. If the agreement does not provide for such a duty, any disparate treatment of union officials violates § 8(a)(3). The court reasoned that in the absence of a clear contractual duty, requiring a union official to take affirmative steps to end an illegal work stoppage would place him in an intolerable position. If he failed to follow the company’s directions, he would place his job in jeopardy. If he complied with the company’s demands and crossed the picket line, he would lose the respect and support of the union members. Id., at 482-483.

The Court of Appeals rejected the company’s argument that the two earlier arbitration awards were sufficient to impose a contractual duty on the union officials to cross the picket line. The court held that it was not bound by these arbitration decisions in determining the extent of the officials’ contractual obligations. Id., at 483. It noted that a previous arbitration decision normally would not bind an arbitrator later construing the same collective-bargaining agreement. Absent an express contractual provision making earlier arbitration decisions binding, the court declined to give these decisions any greater effect than an arbitrator would. Id., at 483-484.

We granted certiorari to consider these recurring questions of federal labor law. 457 U. S. 1116 (1982). We now affirm.

This case does not present the question whether an employer may impose stricter penalties on union officials who take a leadership role in an unlawful strike. The Administrative Law Judge found that neither Light nor Lang acted as a strike leader. Nor does this case question the employer’s right to discipline union officials who engage in unprotected activity. Neither the union nor the Board has argued that union officials who fail to honor a no-strike clause are immunized from being disciplined in the same manner as other strike participants. The narrow question presented is whether an employer unilaterally may define the actions a union official is required to take to enforce a no-strike clause and penalize him for his failure to comply.

Metropolitan Edison advances two arguments to justify the additional sanctions it imposed on Light and Lang. It contends first that its actions did not violate § 8(a)(3) because a union official has a duty to ensure compliance with the terms of the collective-bargaining agreement. Breach of this duty justifies the imposition of an additional penalty on union officials. Alternatively, the company contends that a union in effect may waive any statutory protection that otherwise would be accorded its officials by agreeing that they will undertake specific action to assure compliance with the no-strike clause. In this case, the arbitration awards and the union’s acquiescence in the harsher sanctions imposed on its officials are sufficient to establish a clear contractual duty. We examine these arguments in turn.

A

Section 8(a)(3) makes it an unfair labor practice for an employer “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.” 29 U. S. C. § 158(a)(3). By its terms, the statute requires proof that disparate treatment has been accorded union members and that the employer’s action is likely to discourage participation in union activities. See NLRB v. Brown, 380 U. S. 278, 286 (1965). Congress, howqver, did not intend to make unlawful all acts that might have the effect of discouraging union membership. See American Ship Building Co. v. NLRB, 380 U. S. 300, 311 (1965). Rather, the intention was to forbid only those acts that are motivated by an anti-union animus. See, e. g., NLRB v. Great Dane Trailers, Inc., 388 U. S. 26, 33 (1967); NLRB v. Brown, supra, at 286-287.

In determining whether Metropolitan Edison’s conduct constitutes a § 8(a)(3) violation, we are guided by well-established precedent. Where there is direct evidence of an employer’s antiunion motive, the Court has recognized that otherwise legitimate actions may constitute unfair labor practices. See NLRB v. Erie Resistor Corp., 373 U. S. 221, 227 (1963). Where, as here, there is only circumstantial evidence of intent to discriminate, identification of a § 8(a)(3) violation involves a more difficult inquiry. Intent must be inferred from conduct. But an employer may take actions in the course of a labor dispute that present a possible complex of motives, see id., at 228, and it is often difficult to identify the true motive.

In these situations, the Court has divided an employer’s conduct into two classes. See NLRB v. Great Dane Trailers, Inc., 388 U. S., at 33-34. Some conduct is so “‘inherently destructive of employee interests’ ” that it carries with it a strong inference of impermissible motive. See id., at 33 (quoting NLRB v. Brown, supra, at 287). In such a situation, even if an employer comes forward with a nondiscriminatory explanation for its actions, the Board “may nevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.” 388 U. S., at 33-34. On the other hand, if the adverse effect of the discriminatory conduct on employee rights is “ ‘comparatively slight,’ an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct.” Id., at 34 (emphasis in original). Congress has entrusted this determination in the first instance to the Board, see NLRB v. Erie Resistor Corp., supra, at 236, and we turn now to its decisions.

B

The Board has found that disciplining union officials more severely than other employees for participating in an unlawful work stoppage “is contrary to the plain meaning of Section 8(a)(3) and would frustrate the policies of the Act if allowed to stand.” Precision Castings Co., 233 N. L. R. B., at 184. This conduct, in the Board’s view, is “inherently destructive” of protected individual rights because it discriminates solely on the basis of union status. See Consolidation Coal Co., 263 N. L. R. B. 1306 (1982); Indiana & Michigan Electric Co., 237 N. L. R. B. 226 (1978), enf. denied, 599 F. 2d 227 (CA7 1979). The Board has concluded that an employer’s contractual right to be free of unauthorized strikes does not counterbalance the “discriminatory effects of singling out union officers for especially harsh treatment. ” Consolidation Coal Co., 263 N. L. R. B., at 1309. Disciplining union officials discriminatorily may have only an indirect effect on the rank and file’s decision to strike, but it may well deter qualified employees from seeking union office. See ibid.

We defer to the Board’s conclusion that conduct such as Metropolitan Edison’s adversely affects protected employee interests. Section 8(a)(3) not only proscribes discrimination that affects union membership, it also makes unlawful discrimination against employees who participate in concerted activities protected by §7 of the Act. See Radio Officers v. NLRB, 347 U. S. 17, 39-40 (1954). Holding union office clearly falls within the activities protected by § 7, see General Motors Corp., 218 N. L. R. B. 472, 477 (1975), and there can be little doubt that an employer’s unilateral imposition of discipline on union officials inhibits qualified employees from holding office, see Szewczuga v. NLRB, 222 U. S. App. D. C. 336, 347, 686 F. 2d 962, 973 (1982).

Determining that such conduct adversely affects protected employee interests does not conclude the inquiry. If the employer comes forward with a legitimate explanation for its conduct, the Board must “strike the proper balance between the asserted business justifications and the invasion of employee rights.” NLRB v. Great Dane Trailers, Inc., supra, at 33-34. In this case the company has argued that its actions were justified because there is an implied duty on the part of the union officials to uphold the terms of the collective-bargaining agreement. Unquestionably there is support for the proposition that union officials, as leaders of the rank and file, have a legal obligation to support the terms of the contract and to set a responsible example for their members. See Indiana & Michigan Electric Co. v. NLRB, 599 F. 2d, at 230-232. And in view of the disruptive effects of wildcat strikes, the importance of ensuring compliance with no-strike clauses is self-evident. See Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235, 248-249, and n. 17 (1970); Complete Auto Transit, Inc. v. Reis, 451 U. S. 401, 418-419 (1981) (Powell, J., concurring in part and concurring in judgment). But it does not follow that an employer may assume that a union official is required to attempt to enforce a no-strike clause by complying with the employer’s directions and impose a penalty on the official for declining to comply. As the Board has concluded, the imposition of such a penalty would violate § 8(a)(3).

We think the Board’s view is consistent with the policies served by the Act. “The entire process of collective bargaining is structured and regulated on the assumption that ‘[t]he parties . . . proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest.’” General Building Contractors Assn. v. Pennsylvania, 458 U. S. 375, 394 (1982) (quoting NLRB v. Insurance Agents, 361U. S. 477, 488 (I960)). Congress has sought to ensure the integrity of this process by preventing both management and labor’s representatives from being coerced in the performance of their official duties. See Florida Power & Light Co. v. Electrical Workers, 417 U. S. 790, 810-811 (1974); id., at 814 (White, J., dissenting). Cf. 29 U. S. C. § 158(a)(2) (specifying employer domination of unions as an unfair labor practice). If, as the company urges, an employer could define unilaterally the actions that a union official is required to take, it would give the employer considerable leverage over the manner in which the official performs his union duties. Failure to comply with the employer’s directions would place the official’s job in jeopardy. But compliance might cause him to take actions that would diminish the respect and authority necessary to perform his job as a union official. This is the dilemma Congress sought to avoid. We believe the Board’s decision furthers these policies and uphold its determination.

HH 1 — \

The company argues that even if § 8(a)(3) would prohibit it from imposing a more severe penalty on union officials than on other employees, the union in effect has waived the protection afforded by the statute. The substance of this contention is that, in this case, the prior arbitration awards and the union’s acquiescence in the harsher sanctions imposed on its officials are sufficient to establish a corresponding contractual duty. We are met at the outset, however, by the union’s response that the statutory right to be free from discrimination may never be waived. We examine first the union’s argument.

A

This Court long has recognized that a union may waive a member’s statutorily protected rights, including “his right to strike during the contract term, and his right to refuse to cross a lawful picket line.” NLRB v. Allis-Chalmers Manufacturing Co., 388 U. S. 175, 180 (1967) (footnotes omitted). Such waivers are valid because they “rest on ‘the premise of fair representation’ and presuppose that the selection of the bargaining representative ‘remains free.’” NLRB v. Magnavox Co., 415 U. S. 322, 325 (1974) (quoting Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 280 (1956)); cf. NLRB v. Allis-Chalmers Manufacturing Co., supra, at 180-181. Waiver should not undermine these premises. Thus a union may bargain away its members’ economic rights, but it may not surrender rights that impair the employees’ choice of their bargaining representative. See NLRB v. Magnavox Co., supra, at 325.

We think a union’s decision to bind its officials to take affirmative steps to end an unlawful work stoppage is consistent with “the premise of fair representation.” Such a waiver imposes no constraints on the employees’ ability to choose which union will represent them. Imposition of this duty is more closely related to the economic decision a union makes when it waives its members’ right to strike. It merely requires union officials to take steps that are ancillary to the union’s promise not to strike and provides the employer with an additional means of enforcing this promise.

The union argues that while a union may waive rights that are collective in nature, such as the right to strike, it may not waive individual rights, such as the right to hold union office. In Ford Motor Co. v. Huffman, 345 U. S. 330 (1953), however, the Court recognized that in securing the good of the entire bargaining unit, some differences in the treatment of individual union members might occur:

“Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Id., at 338.

No-strike provisions, central to national labor policy, often have proved difficult to enforce. See Boys Markets, Inc. v. Retail Clerks, 398 U. S., at 248-249, and n. 17; Complete Auto Transit, Inc. v. Reis, 451 U. S., at 423-424 (Powell, J., concurring in part and concurring in judgment). A union and an employer reasonably could choose to secure the integrity of a no-strike clause by requiring union officials to take affirmative steps to end unlawful work stoppages. Indeed, a union could choose to bargain away this statutory protection to secure gains it considers of more value to its members. Its decision to undertake such contractual obligations promotes labor peace and clearly falls within the range of reasonableness accorded bargaining representatives.

B

We consider finally whether the union waived its officials’ rights. In Mastro Plastics Corp., supra, the question was whether a general no-strike provision waived the specific right to strike over an unfair labor practice. While reserving the question whether a union might waive this right if it were “explicitly stated,” the Court determined that “there is no adequate basis for implying [the] existence [of waiver] without a more compelling expression of it than appears in . . . this contract.” 350 U. S., at 283. Thus, we will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is “explicitly stated.” More succinctly, the waiver must be clear and unmistakable.

In this case, Metropolitan Edison does not contend that the general no-strike clause included in the bargaining agreement imposed any explicit duty on the union officials. Rather it argues that the union’s failure to change the relevant contractual language in the face of two prior arbitration decisions constitutes an implicit contractual waiver. Not to give these decisions any effect, the company argues, would impair the effectiveness of the dispute resolution process for which the parties bargained.

We agree that the grievance-arbitration procedure forms an integral part of the collective-bargaining process. See Clayton v. Automobile Workers, 451 U. S. 679, 686-687 (1981); Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 578 (1960). And we do not doubt that prior arbitration decisions may be relevant — both to other arbitrators and to the Board — in interpreting bargaining agreements. But to waive a statutory right the duty must be established clearly and unmistakably. Where prior arbitration decisions have been inconsistent, sporadic, or ambiguous, there would be little basis for determining that the parties intended to incorporate them in subsequent agreements. Assessing the clarity with which a party’s duties have been defined of course will require consideration of the specific circumstances of each case. Cf. Carbon Fuel Co. v. Mine Workers, 444 U. S. 212, 221-222 (1979).

As noted above, the company argues that when the prior bargaining agreement was renegotiated, the union’s silence manifested a clear acceptance of the earlier arbitration decisions. During the history of collective bargaining between these two parties, however, there were only two arbitration decisions that imposed a higher duty on union officials. We do not think that two arbitration awards establish a pattern of decisions clear enough to convert the union’s silence into binding waiver. This is especially so in light of the provision in the bargaining agreement that “[a] decision [by an arbitrator] shall be binding ... for the term of this agreement.” See n. 5, supra (emphasis added). We conclude that there is no showing that the parties intended to incorporate the two prior arbitration decisions into the subsequent agreement.

> HH

We accept the Board s conclusion that the imposition of more severe sanctions on union officials for participating in an unlawful work stoppage violates § 8(a)(3). While a union may waive this protection by clearly imposing contractual duties on its officials to ensure the integrity of no-strike clauses, we find that no waiver occurred here. Accordingly, the judgment of the Court of Appeals is

Affirmed.

       Although the collective-bargaining agreement applicable to the incident in this case took effect on May 1, 1976, the no-strike clause has remained unchanged at all relevant times.

       In 1972, Metropolitan Edison disciplined union officials more severely than the other employees for not instructing striking employees to return to work. The company’s actions were upheld by the arbitrator, who found “that Union officials have an affirmative duty to protect the authority of the Union leadership from illegitimate action on the part of employees, and to uphold the sanctity of the Agreement and its established grievance procedures.” App. to Pet. for Cert. A-60 (emphasis in original).
      Two years later the company again determined that a senior shop steward was not taking sufficient corrective action during an unlawful work stoppage and imposed a greater penalty on him than on the other participants. This action also was upheld on arbitration. See id., at A-62, A-71.
      Once in 1970 and again in 1973, the company imposed a more severe penalty on union officials who participated in an unlawful work stoppage. The officials were suspended for one and five days respectively, but the union chose not to take these cases to arbitration. See App. 29, 32.

       The company stated that the employees were being disciplined for “failure to report to work as scheduled and participation in an unlawful work stoppage.” Metropolitan Edison Co., 252 N. L. R. B. 1030, 1333 (1980). It specified that Light and Lang were being disciplined for the same reason but added:
      “In addition, you are being disciplined for your failure as an elected official of Local Union 563 IBEW to demonstrate to the Company, in an objective manner, your affirmative duty as an elected officer to:
      “(c) Make every effort, including returning to work yourself, to end the unlawful work stoppage.

        “Your participation in any unlawful work stoppage in the future will result in your immediate discharge.” Ibid, (emphasis in original).

       Sections 8(a)(1) and (3), as set forth in 29 U. S. C. §§ 158(a)(1) and (3), provide in relevant part:
      “(a) It shall be an unfair labor practice for an employer—
      “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
      “(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.”
      Although §§ 8(a)(1) and (a)(3) are not coterminous, a violation of § 8(a)(3) constitutes a derivative violation of § 8(a)(1). See Indiana & Michigan Electric Co. v. NLRB, 599 F. 2d 227, 229, n. 2 (CA7 1979); cf. R. Gorman, Basic Text on Labor Law 137 (1976). Because the Board has not suggested that there is an independent violation of § 8(a)(1), we consider only the § 8(a)(3) charge.

       The bargaining agreement provided that arbitration decisions would be binding only for the term of the agreement. See 663 F. 2d 478, 484 (CA3 1981) (citing Article IX, §9.2, ¶ 4, of the collective-bargaining agreement).

       The Board has held that employees who instigate or provide leadership for unprotected strikes may be subject to more severe discipline than other employees. See Midwest Precision Castings Co., 244 N. L. R. B. 597, 598 (1979); Chrysler Corp., 232 N. L. R. B. 466, 474 (1977). In making this factual determination the Board has recognized that a remark made by a union official may have greater significance than one made by a rank-and-file member. See Midwest Precision Castings, supra, at 599.
      In this case the Board accepted the Administrative Law Judge’s finding that Light and Lang were not strike leaders, and the Court of Appeals affirmed that finding. See 663 F. 2d, at 484. We note also that the disciplinary notices issued to both Light and Lang made clear that the additional penalties imposed on them were not based on any perceived leadership role in initiating or maintaining the strike. See n. 3, supra.

       This case does not present the issue of the proper allocation of burdens and order of proof in a “mixed motive” case, or in cases where an employee contends that an employer’s otherwise legitimate act masks an impermissible purpose. See NLRB v. Transportation Management Corp., 674 F. 2d 130 (CA1), cert. granted, 459 U. S. 1014 (1982).

       The Board’s position on this question has not always been entirely clear. Some early Board opinions noted, as alternative rationales, that union officials have a greater duty than the rank and file to uphold a no-strike clause. Compare University Overland Express, Inc., 129 N. L. R. B. 82, 92 (1960); Stockham Pipe Fittings Co., 84 N. L. R. B. 629, (1949), with Chrysler Corp., 232 N. L. R. B., at 476; Pontiac Motors Division, 132 N. L. R. B. 413, 415 (1961). See also Note, Discriminatory Discipline of Union Representatives for Breach of their “Higher Duty” in Illegal Strikes, 1982 Duke L. J. 900, 904-912 (reviewing Board’s treatment of status-based responsibility). Precision Castings has eliminated any ambiguity, however, and the Board’s position has been upheld by almost every Court of Appeals that has considered this question. See NLRB v. South Central Bell Telephone Co., 688 F. 2d 345, 355 (CA5 1982); Szewczuga v. NLRB, 222 U. S. App. D. C. 336, 347, 686 F. 2d 962, 973 (1982); C. H. Heist Corp. v. NLRB, 657 F. 2d 178, 182-183 (CA7 1981) (distinguishing Indiana & Michigan Electric Co. v. NLRB, 599 F. 2d 227 (CA7 1979)). But cf. NLRB v. Armour-Dial, Inc., 638 F. 2d 51, 55-56 (CA8 1981) (upholding harsher penalties only because officials “fomented” illegal work stoppage).

       For example, when this Court upheld the Board’s decision that foremen could constitute an appropriate unit for collective bargaining, see Packard Motor Car Co. v. NLRB, 380 U. S. 485 (1947), Congress responded by excluding supervisors from the coverage of the Act. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 279-284 (1974); 29 U. S. C. § 152(3). Congress was concerned that if supervisors were included in a bargaining unit, ‘“management will be deprived of the undivided loyalty of its foremen.’” Florida Power & Light Co. v. Electrical Workers, 417 U. S. 790, 809-810 (1974) (quoting S. Rep. No. 105, 80th Cong., 1st Sess., 5 (1947)). This concern was not limited to ensuring the loyalty of management’s representatives. The House Report recognized that “no one, whether employer or employee need have as his agent one who is obligated to those on the other side, or one whom, for any reason, he does not trust.” H. R. Rep. No. 245, 80th Cong., 1st Sess., 17 (1947) (emphasis in original); see also id., at 14 (stating that management, “as well as workers, are entitled to loyal representatives in the plants”).

       The Board’s position on this question has not been consistent. Compare Super Valu Xenia, 228 N. L. R. B. 1254, 1259 (1977) (upholding discipline of union officials where collective-bargaining agreement expressly imposed higher duty on union officials), with Gould Corp., 287 N. L. R. B. 881 (1978) (discharge of union steward not validated by contractually imposed duty), enf. denied, 612 F. 2d 728 (CA3 1979). Recently, in Consolidation Coal Co., 263 N. L. R. B. 1306 (1982), two Board members held that a contractual duty will not justify the imposition of more severe sanctions on union officials. See id., at 1310 (Members Fanning and Jenkins). Member Zimmerman would have allowed waiver where the duty was explicit. See id., at 1311-1312. Two members would have found an affirmative duty even absent such waiver. See id., at 1313 (Chairman Van de Water, dissenting); id., at 1319 (Member Hunter, dissenting). To the extent Consolidation Coal provides any guidance as to the Board’s present views, it suggests that a majority of the Board would find no statutory violation where the bargaining agreement imposes a specific duty on union officials. The Courts of Appeals that have considered this question have agreed that this statutory protection may be waived. See, e. g., NLRB v. South Central Bell Telephone Co., 688 F. 2d, at 356; Fournelle v. NLRB, 216 U. S. App. D. C. 173, 182-183, 670 F. 2d 331, 340-341 (1982); Gould, Inc. v. NLRB, 612 F. 2d 728, 733 (CA3 1979), cert. denied, 449 U. S. 890 (1980); C. H. Heist Corp. v. NLRB, 657 F. 2d, at 183.

       The union contends that Alexander v. Gardner-Denver Co., 415 U. S. 36, 51 (1974), demonstrates that the individual right not to be discriminated against may never be waived. In Gardner-Denver, however, we noted that waiver would be inconsistent with the purposes of the statute at issue there. As discussed above, the National Labor Relations Act contemplates that individual rights may be waived by the union so long as the union does not breach its duty of good-faith representation.

       The Courts of Appeals have agreed that the waiver of a protected right must be expressed clearly and unmistakably. See, e. g., Chesapeake & Potomac Telephone Co. v. NLRB, 687 F. 2d 633, 636 (CA2 1982); NLRB v. Southern California Edison Co., 646 F. 2d 1352, 1364 (CA9 1981); Communication Workers of America, Local 1051 v. NLRB, 644 F. 2d 923, 927 (CA1 1981). The holding in Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962), is not to the contrary. There the Court found that a contract provision establishing that a dispute shall be settled exclusively and finally by compulsory arbitration makes clear that the union may not strike over such a dispute. See id., at 105. Lucas Flour established that there does not have to be an express waiver of statutory rights, but waiver was implied in that situation only because of the unique conjunction between arbitration and no-strike clauses. Cf. Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 382 (1974).

       An arbitration decision may be relevant to establishing waiver of this statutory right when the arbitrator has stated that the bargaining agreement itself clearly and unmistakably imposes an explicit duty on union officials to end unlawful work stoppages. Absent such a statement, the arbitration decision would not demonstrate that the union specifically intended to waive the statutory protection otherwise afforded its officials. In this ease, however, the two arbitration decisions did not purport to determine the parties’ specific intent.
      Even if the arbitration decisions do not state that there is a specific and explicit duty, they still may be relevant in determining the parties’ intent. Where there is a clear and consistent pattern of arbitration decisions the parties, in some circumstances, may be said to have incorporated the decisions into their subsequent bargaining agreements. Cf. Carbon Fuel Co. v. Mine Workers, 444 U. S. 212, 221-222 (1979).