INTERNATIONAL LONGSHOREMEN‘S ASSOCIATION, AFL-CIO v. DAVIS
No. 85-217
Supreme Court of the United States
Argued February 25, 1986—Decided May 27, 1986
476 U.S. 380
Charles R. Goldburg argued the cause for appellant. With him on the briefs was Thomas W. Gleason.
Bayless E. Biles argued the cause and filed a brief for appellee.*
JUSTICE WHITE delivered the opinion of the Court.
The opinion in San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), set forth a general standard for determining when state proceedings or regulations are pre-empted by the provisions of the National Labor Relations Act (NLRA or Act), see
I
Appellee Larry Davis was formerly employed by Ryan-Walsh Stevedoring Co. in Mobile, Alabama. At the times relevant to the events that gave rise to this suit, he was a ship superintendent or trainee ship superintendent. The ship superintendents apparently served as the immediate superiors of the longshoremen employed by Ryan-Walsh. They were on salary, however, and their compensation was generally lower than that received by the longshoremen, who worked on an hourly basis.
In early 1981, Ben Trione, one of the ship superintendents who worked for Ryan-Walsh, contacted appellant International Longshoremen‘s Association (ILA or Union), a union that represents longshoremen and other employees on the waterfront, to discuss the possibility of organizing the superintendents and affiliating with the Union. Although the parties here dispute the content of the conversations that occurred at this stage between Trione and the ILA representatives regarding the ship superintendents and their eligibility for union membership, it is undisputed that a meeting of the superintendents was organized by Trione and attended by Benny Holland, an ILA official from Houston, Texas.
At this meeting, several of the superintendents expressed a fear of being discharged for participating in union-related activities. According to Davis’ witnesses, Holland‘s response to this was to reassure them that the Union would get them their jobs back with backpay if that happened. According to Holland, however, Holland‘s response was that they would be protected in that manner only if they were determined not to be supervisors under the Act and that he did
On the day following the organizational meeting, Ryan-Walsh fired Trione. Trione contacted the ILA, which supplied him with an attorney. The attorney filed an unfair labor practice charge against Ryan-Walsh with the National Labor Relations Board, alleging that Trione was an employee under the Act and that Ryan-Walsh had violated
In response to his discharge, Davis filed this suit against the ILA in the Circuit Court of Mobile County, alleging fraud and misrepresentation under
On appeal to the Supreme Court of Alabama, the ILA argued that pre-emption was not a waivable defense and that the state fraud and misrepresentation action was pre-empted under Garmon. Although acknowledging that other state courts had adopted the ILA‘s position that NLRA pre-emption was nonwaivable,6 the Alabama court held that “[i]t is not the circuit court‘s subject matter jurisdiction to adjudicate a damage claim for the tort of fraud—even if it arises in the context of a labor-related dispute—that is pre-empted. Rather, it is the state court‘s exercise of that power that is subject to preemption.” 470 So. 2d 1215, 1216 (1985). The court‘s view was that as a state court of general jurisdiction the Circuit Court had had subject-matter jurisdiction over this ordinary tort claim for damages. As a waivable defense, the pre-emption claim was required under Alabama
The Alabama Supreme Court, although holding that the ILA‘s pre-emption claim had been waived, stated in a footnote that if it had had occasion to reach the merits, it would have found no pre-emption:
“The instant facts fall squarely within the ‘peripheral concern’ exception to federal preemption of state jurisdiction of labor-related disputes. San Diego Building Trades Council v. Garmon, 359 U. S. 236, 243–44 (1959). The National Labor Relations Board has already determined that an employer‘s supervisors are not protected by the Labor Management Relations Act. Thus, in this case, [Davis] has no remedy before the NLRB, and this dispute, although somewhat labor-related, is, at most, only of ‘peripheral concern’ to the NLRB. See, e. g., Linn v. United Plant Guard Workers Local 114, 383 U. S. 53 (1966).” Id., at 1216–1217, n. 2 (citations omitted).
The Alabama Supreme Court accordingly affirmed the judgment against the Union. The Union appealed to this Court; Davis moved to dismiss the appeal on the ground that the decision below rested on an adequate and independent state ground because the Alabama Supreme Court‘s decision was based on an application of a state procedural rule. The ILA‘s submission, however, raised a substantial question whether reliance on the procedural rule rested on an errone-
II
A
Given the reliance of the Alabama Supreme Court on its procedural rule governing the presentation of affirmative defenses, we first decide whether that rule in this case represents an independent and adequate state ground supporting the judgment below. If it does, our review is at an end, for we have no authority to review state determinations of purely state law. Nor do we review federal issues that can have no effect on the state court‘s judgment. See, e. g., Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 566 (1977); Herb v. Pitcairn, 324 U. S. 117, 125–126 (1945); Fox Film Corp. v. Muller, 296 U. S. 207, 210 (1935). The inquiry into the sufficiency of the asserted state ground, however, is one that we undertake ourselves. See Michigan v. Long, 463 U. S. 1032, 1038 (1983); Abie State Bank v. Bryan, 282 U. S. 765, 773 (1931).
In concluding that the Union‘s pre-emption claim was procedurally barred, the Alabama Supreme Court first held that because the Mobile County Circuit Court, as a state court of general jurisdiction, had subject-matter jurisdiction over the simple tort claim of misrepresentation, there could be no pre-emption of that court‘s actual jurisdiction. Only the exercise of that jurisdiction could be pre-empted.
This explanation has a certain logic to it; but the point is not whether state law gives the state courts jurisdiction over particular controversies but whether jurisdiction provided by
If the Alabama procedural ruling under state law implicates an underlying question of federal law, however, the state law is not an independent and adequate state ground supporting the judgment:
“[W]hen resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court‘s holding is not independent of federal law, and our jurisdiction is not precluded. . . . In such a case, the federal-law holding is integral to the state court‘s disposition of the matter, and our ruling on the issue is in no respect advisory.” Ake v. Oklahoma, 470 U. S. 68, 75 (1985) (citing Herb v. Pitcairn, supra, at 126; Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U. S. 157, 164 (1917)).
To determine the sufficiency of the state procedural ground relied upon by the Alabama Supreme Court we must ascertain whether that court correctly resolved the antecedent federal question regarding the nature of Garmon pre-emption under the NLRA. Specifically, the question is whether Garmon pre-emption is a waivable affirmative defense such that a state court may adjudicate an otherwise pre-empted claim if the Garmon defense is not timely raised
B
The Court‘s opinion in Garner v. Teamsters, 346 U. S. 485, 490–491 (1953), articulated what has come to be the accepted basis for the broadly pre-emptive scope of the NLRA:
“Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. . . . A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.”
Building on this cornerstone, the Garmon Court went on to set out the now well-established scope of NLRA pre-emption. Given the NLRA‘s “complex and interrelated federal scheme of law, remedy, and administration,” 359 U. S., at 243, the Court held that “due regard for the federal enactment requires that state jurisdiction must yield,” id., at 244, when the activities sought to be regulated by a State are clearly or may fairly be assumed to be within the purview of §7 or §8. The Court acknowledged that “[a]t times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections.” Ibid. Even in such ambiguous
In Construction Laborers v. Curry, 371 U. S. 542 (1963), we considered the application of these principles to a situation in which the Georgia courts had awarded relief based on a complaint that contained allegations that made out “at least an arguable violation of § 8(b).” Id., at 546. There, we reviewed a claim that “the subject matter of [the] suit was within the exclusive jurisdiction of the National Labor Relations Board,” id., at 543, and held that, even though the state court was authorized to adjudicate the claim as a matter of state law, the state court “clearly exceeded its power” in awarding relief on the complaint. Id., at 548. Specifically, “the state court had no jurisdiction to issue an injunction or to adjudicate this controversy, which lay within the exclusive powers of the National Labor Relations Board.” Id., at 546–547.
That our conclusion was in fact jurisdictional was accentuated by our discussion of the procedural context in which the case arose. The state court had awarded a temporary injunction only, and a permanent order had not yet been issued. We rejected, however, the argument that the judgment was not yet final for purposes of our own jurisdiction:
“[W]e believe our power to review this case rests upon solid ground. The federal question raised by petitioner in the Georgia court, and here, is whether the Georgia courts had power to proceed with and determine this controversy. The issue ripe for review is not whether a
Georgia court has erroneously decided a matter of federal law in a case admittedly within its jurisdiction nor is it the question of whether federal or state law governs a case properly before the Georgia courts. What we do have here is a judgment of the Georgia court finally and erroneously asserting its jurisdiction to deal with a controversy which is beyond its power and instead is within the exclusive domain of the National Labor Relations Board.” Id., at 548 (citations omitted).
See also Belknap, Inc. v. Hale, 463 U. S. 491, 497–498, n. 5 (1983). Curry made clear that when a state proceeding or regulation is claimed to be pre-empted by the NLRA under Garmon, the issue is a choice-of-forum rather than a choice-of-law question. As such, it is a question whether the State or the Board has jurisdiction over the dispute. If there is pre-emption under Garmon, then state jurisdiction is extinguished.9
Since Garmon and Curry, we have reiterated many times the general pre-emption standard set forth in Garmon and the jurisdictional nature of Garmon pre-emption; we have also reaffirmed that our decisions describing the nature of Garmon pre-emption and defining its boundaries have rested on a determination that in enacting the NLRA Congress intended for the Board generally to exercise exclusive jurisdiction in this area. See, e. g., Journeymen v. Borden, 373 U. S. 690, 698 (1963); Iron Workers v. Perko, 373 U. S. 701, 708 (1963); Liner v. Jafco, Inc., 375 U. S. 301, 309–310 (1964); Linn v. Plant Guard Workers, 383 U. S. 53, 60 (1966); Vaca v. Sipes, 386 U. S. 171, 179 (1967); Motor Coach Em-ployees v. Lockridge, 403 U. S. 274, 285–291 (1971); Farmer v. Carpenters, 430 U. S. 290, 296–297, 305 (1977); Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180, 188–190 (1978); Operating Engineers v. Jones, 460 U. S. 669, 676 (1983); Belknap, Inc. v. Hale, supra, at 510–511; Brown v. Hotel Employees, 468 U. S. 491, 502–503 (1984); Wisconsin Dept. of Industry, Labor and Human Relations v. Gould Inc., 475 U. S. 282, 286 (1986).
Davis does not seriously dispute this conclusion—at least as a general matter. He concedes, in fact, that “when a particular issue has been placed by Congress within the primary and exclusive jurisdiction of the NLRB, a state court will have no subject matter jurisdiction to adjudicate the issue. In such cases, any judgment issued by the state court will be void ab initio because subject matter jurisdiction is pre-empted.” Brief for Appellee 13. Davis notes, however, that this Court has acknowledged that Garmon does not pre-empt “all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions; obviously, much of this is left to the States.” Lockridge, supra, at 289. Specifically, Davis points to Garmon‘s own recognition that some controversies that are arguably subject to § 7 or § 8 are not pre-empted:
“[D]ue regard for the presuppositions of our embracing federal system . . . has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. Or where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.” 359 U. S., at 243–244 (citations omitted).
Both before and since Garmon we have identified claims that fall within one or both these articulated exceptions. See, e. g., Belknap, Inc. v. Hale, supra; Farmer v. Carpen-ters, supra; Linn v. Plant Guard Workers, supra; Automobile Workers v. Russell, 356 U. S. 634 (1958); Machinists v. Gonzales, 356 U. S. 617 (1958); Youngdahl v. Rainfair, Inc., 355 U. S. 131 (1957); Construction Workers v. Laburnum Construction Corp., 347 U. S. 656 (1954).10 But these cases serve only as more precise demarcations of the scope of Garmon pre-emption. They have not redefined the nature of that pre-emption in any way. A claim of Garmon pre-emption is a claim that the state court has no power to adjudicate the subject matter of the case, and when a claim of Garmon pre-emption is raised, it must be considered and resolved by the state court. Consequently, the state procedural rule relied on by the Alabama Supreme Court to support the judgment below was not a sufficient state ground, and the Union was and is entitled to an adjudication of its pre-emption claim on the merits.11
III
As the Garmon line of cases directs, the pre-emption inquiry is whether the conduct at issue was arguably protected or prohibited by the NLRA. That much is clear. There is also no dispute that if Davis was a supervisor, he was legally fired,12 the Union misspoke if it represented that there was legal redress for the discharge, and there is no pre-emption. But if Davis was an employee, his discharge for union activities was an unfair practice, the Union was protected in its attempt to interest him in the Union, and it did not err in representing that if he was discharged for joining the Union, there would be a remedy. We should inquire, then, whether Davis was arguably an employee, rather than a supervisor. If he was, the issue was to be initially decided by the NLRB, not the state courts.
The precondition for pre-emption, that the conduct be “arguably” protected or prohibited, is not without substance. It is not satisfied by a conclusory assertion of pre-emption and would therefore not be satisfied in this case by a claim,
Expecting that the Union would put its best foot forward in this Court, we look first at its submission here that there is an arguable case for pre-emption. The Union‘s brief states that its conduct was protected by federal law if Davis was an employee, that in order to find the Union liable the jury must have found that Davis was a supervisor, and that “the state law controversy of whether the Union made a misrepresentation and the federal controversy of whether the superintendents were in fact supervisors are ‘the same in a fundamental respect.‘” Brief for Appellant 16 (quoting Operating Engineers v. Jones, 460 U. S., at 682). So far, the argument proceeds in the right direction. As for the critical issue of whether Davis is an employee or a supervisor, the Union asserts only that “[a]bsent a clear determination by the NLRB that the ship superintendents are supervisors rather than employees, superintendents are arguably employees and the state is preempted from applying its law.” Brief for Appellant 13. In making this contention, the ILA
We cannot agree that Davis’ arguable status as a supervisor is made out by the mere fact that the Board has not finally determined his status. The lack of a Board decision in no way suggests how it would or could decide the case if it had the opportunity to do so. To accept the Union‘s submission would be essentially equivalent to allowing a conclusory claim of pre-emption and would effectively eliminate the necessity to make out an arguable case. The better view is that those claiming pre-emption must carry the burden of showing at least an arguable case before the jurisdiction of a state court will be ousted.
Moreover, neither Garmon nor Hanna Mining supports the Union‘s position. Garmon itself is the source of the arguably protected or prohibited standard for pre-emption. The Court stated, 359 U. S., at 244:
“When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by
§ 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of the federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.”
Later the Court said: “When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence” of the Board. Id., at 245. Of course, the Court explained, the Board might decide the case one way or the other, but in the “absence of the Board‘s clear determination that an activity is neither protected or prohibited,” id., at 246, it is not for the courts to decide the case. It is apparent from these passages that a court first must decide whether there is an arguable case for pre-emption; if there is, it must defer to the Board, and only if the Board decides that the conduct is not protected or prohibited may the court entertain the litigation. Nothing in Garmon suggests that an arguable case for pre-emption is made out simply because the Board has not decided the general issue one way or the other.
Hanna Mining also does nothing for the Union‘s submission. The Court there, relying on Garmon, held that there was no pre-emption because the Board or its General Counsel had in fact adversely decided the issues on which the claim of pre-emption rested. Obviously, no inference may be drawn from that decision that a party makes out a case for pre-emption by merely asserting that the issue involved has not been decided by the Board. The Union‘s position is also negated by Interlake S. S. Co., supra, where the Court found pre-emption only after examining the facts and deciding “whether the evidence in this case was sufficient to show that either of [the organizations] was arguably a ‘labor organization’ within the contemplation of § 8(b).” Id., at 178. The Court went on to hold that while there was persuasive evi-
Here, the Union points to no evidence in support of its assertion that Davis was arguably an employee. The Union‘s claim of pre-emption in the state courts was also devoid of any factual or legal showing that Davis was arguably not a supervisor but an employee. In this respect, its brief in the Alabama Supreme Court was similar to its brief here, and its post-trial motion for judgment in the trial court contained no more than a conclusory assertion that state jurisdiction was pre-empted. Until that motion, no claim of pre-emption had been made out, but whether Davis was a supervisor or an employee was a relevant inquiry in making out his case. He alleged in his complaint that he was a supervisor. The Union answered that it was without sufficient information to form a belief as to whether or not he was. Moreover, in moving for summary judgment or for directed verdict at the close of Davis’ case and at the close of all the evidence the Union did not assert that Davis was an employee, not a supervisor, let alone point to any evidence to support such a claim.14 In sum, the Union has not met its burden of showing that the conduct here was arguably subject to the Act.
IV
We hold that where state law is pre-empted by the NLRA under Garmon and our subsequent cases, the state courts lack the very power to adjudicate the claims that trigger pre-
So ordered.
JUSTICE REHNQUIST, with whom JUSTICE POWELL, JUSTICE STEVENS, and JUSTICE O‘CONNOR join, concurring in part and concurring in the judgment.
The Court holds that appellant Union‘s federal pre-emption claim must be considered on the merits by Alabama courts even though the Union never once raised the claim in the Alabama trial court until a post-trial motion following an adverse jury verdict. By allowing a defendant to save its pre-emption claim until after it sees the verdict, this ruling poses a sufficient threat to orderly judicial proceedings that it can be justified only if Congress has mandated such a result. Because Congress clearly has not mandated any such result, I disagree with Part II of the Court‘s opinion.
Appellee Davis sued the Union in the Circuit Court of Mobile County alleging fraud and misrepresentation. Davis had been first a trainee ship superintendent and then a ship superintendent in the employ of Ryan-Walsh Stevedoring Co. in Mobile. Although the ship superintendents were theoretically superior to the longshoremen, they were paid
One of Davis’ fellow ship superintendents contacted the Union to see about the possibility of organizing the superintendents and affiliating with the Union. At a meeting of the superintendents to discuss that possibility, several of them expressed a fear of being discharged for participating in union-related activities. Testimony at trial indicated that one Benny Holland, a union representative, had assured the superintendents that the Union would get them their jobs back with backpay if they were discharged. As a result of the meeting, a number of the ship superintendents including Davis signed pledge cards and an application for a union charter from the ILA.
Sure enough, first another superintendent and then Davis were discharged by Ryan-Walsh, and the Union did not succeed in getting them their jobs back, with or without backpay. Davis then filed this suit, which the Union defended on the merits throughout the trial; at the conclusion of the trial the jury returned a verdict in Davis’ favor for $75,000. Only at this point, in a motion for judgment notwithstanding the verdict, did the Union first raise its pre-emption claim, a technique that the Court now sanctions.
The Supreme Court of Alabama refused to consider the claim, observing that Alabama Circuit Courts are courts of general jurisdiction having authority to try, inter alia, cases involving fraud and misrepresentation. That court held that the Union‘s pre-emption claim was an affirmative defense under the Alabama Rules of Civil Procedure, and had to be affirmatively pleaded in order to be considered. I agree with this Court that Congress could, if it wished, forbid Alabama to impose any such procedural rule, but I am convinced that Congress has done no such thing.
The Court relies on what it apparently considers to be the similar case of Kalb v. Feuerstein, 308 U. S. 433 (1940). There Congress did provide quite explicitly that state courts
“(o) Except upon petition made to and granted by the judge after hearing and report by the conciliation commissioner, the following proceedings shall not be instituted, or if instituted at any time prior to the filing of a petition under this section, shall not be maintained, in any court or otherwise, against the farmer or his property, at any time after the filing of the petition under this section, and prior to the confirmation or other disposition of the composition or extension proposal by the court:
. . . . .
“(2) proceedings for foreclosure of a mortgage on land or for recovery of possession of land.” Id., at 440–441 (quoting Frazier-Lemke Act) (emphasis deleted).
In the present case, by contrast, Congress has never said a word about pre-emption of state-court jurisdiction. This Court, in a long line of cases beginning with Garner v. Teamsters, 346 U. S. 485 (1953), has enunciated a judicial doctrine of pre-emption in labor relations cases based on the implied intent of Congress. But as the Court noted in Garner:
“The national Labor Management Relations Act, as we have before pointed out, leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.” Id., at 488 (footnote omitted).
Thus when the Court speaks of the pre-emption of “subject-matter jurisdiction” here, it must rely on a far more dimly refracted version of congressional intent than did the Kalb Court: not what Congress said, but what this Court thinks Congress might have said had it been confronted with
The Court also places undue reliance upon its opinion in Construction Laborers v. Curry, 371 U. S. 542 (1963). There the claim of federal pre-emption had been properly presented by the union at every stage of Georgia proceedings. This Court, on direct review of a judgment of the Supreme Court of Georgia, held that Congress had denied to the Georgia courts the authority to issue an injunction because the matter was “within the exclusive powers of the National Labor Relations Board.” Id., at 546–547. The Court‘s opinion in Curry refers to state-court “jurisdiction,” but as Justice Frankfurter explained, “the term ‘jurisdiction’ . . . is a verbal coat of . . . many colors.” United States v. Tucker Truck Lines, Inc., 344 U. S. 33, 39 (1952) (dissenting opinion). The Court‘s opinion today implicitly suggests that the word “jurisdiction” is to lawyers what a term like Bombycilla cedrorum (cedar waxwing) is to ornithologists: a description of one and only one particular species recognized throughout the world. We all know that the term “jurisdiction” does not partake of that specialized a meaning.
Nothing in Curry, and certainly nothing in Kalb, foreordains the result in this case. State-court judges and trial courts of general jurisdiction in Alabama and in the other 49 States are experts primarily in state law, not federal law. Indeed, with the advancing march of federal legislation in areas heretofore left to state law, it would be an impossible task for any judge—federal or state—to keep abreast of the various areas in which there might be federal pre-emption. Here Alabama, by application of a neutral statute with a precise counterpart in the Federal Rules of Civil Procedure, has said that a defendant who wishes to claim federal pre-emption as a defense to state-court exercise of jurisdiction may not wait to raise that claim until after the case has gone to verdict. The Court, saying otherwise, allows a sophisticated defendant as in the present case to gamble on obtaining
Having concluded that National Labor Relations Act pre-emption is “jurisdictional,” and hence may be raised at any time, the Court goes on to decide that the Union has not carried its burden of showing that the conduct at issue here was “arguably” protected or prohibited by the Act. With this I agree. Accordingly, I join Parts I and III of the Court‘s opinion and concur in the judgment.
JUSTICE BLACKMUN, concurring in part and dissenting in part.
The Court today reaffirms that a pre-empted cause of action, as defined in San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), is a claim that a state court is without power to adjudicate. Ante, at 393. I fully agree, and therefore join Parts I and II of the Court‘s opinion. But I believe that the standard enunciated in Part III to determine the pre-emption vel non of a particular cause of action is erroneous, as well as at odds with the principles and policies of Garmon. I therefore dissent from Part III of the Court‘s opinion and from its judgment.
In Garmon, this Court held that when an activity is protected or prohibited by the Act, or arguably protected or prohibited, courts must defer to the exclusive competence of the National Labor Relations Board. Id., at 245. In the absence of the Board‘s clear determination that an activity is neither protected nor prohibited, nor arguably so, courts must stay their hand. “[W]hether federal law does apply is to be decided” by the Board. Taggart v. Weinacker‘s, Inc., 397 U. S. 223, 229 (1970) (separate memorandum of Harlan, J.) (emphasis added). The Court today purports to follow Garmon, but nonetheless requires that the party “claiming
To understand how far the Court strays from the practical and congressionally mandated standard articulated in Garmon, it is sufficient to look to the basis of the broad pre-emption doctrine. Under the Act, some activities are protected and some are prohibited; other activities are subject to state regulation, while still others, not at issue in this case, are to be left unregulated by both federal and state authorities. Thus, the determination of whether an activity falls within the sphere of protected or prohibited is the crucial question under federal law, and one which this Court recognized is not always an easy determination to make. Garmon, 359 U. S., at 244. Accordingly, Congress deprived state courts of jurisdiction over actually or arguably protected or prohibited conduct and “confide[d] primary interpretation and application of its rules to a specific and specially constituted tribunal,” thereby ensuring that the federal scheme would be administered uniformly with the wisdom and insight resulting from specialized expertise and experience. Garner v. Teamsters, 346 U. S. 485, 490 (1953), quoted in Garmon, 359 U. S., at 242.1 Permitting courts to
determine whether activity is protected or prohibited could result in a court‘s finding unlawful an activity that the Board might embrace as lawful.
In an attempt to garner support for its holding, the Court relies on Marine Engineers v. Interlake S. S. Co., 370 U. S. 173, 184 (1962). Such reliance is misplaced. Indeed, in Interlake the Court reaffirmed Garmon, recognizing that the definition of “labor organization,” like the definition of “supervisor,” is “of a kind most wisely entrusted initially to the agency charged with the day-to-day administration of the Act as a whole.” 370 U. S., at 180. In Interlake, this Court held that only the Board could determine whether the union met the statutory definition of a “labor organization.”
The Court in Interlake, in dicta, then reviewed the evidence that was presented. Such evidence was certainly not intended to be held up as the benchmark of the showing required successfully to claim that an activity is arguably protected; the Court made clear that that evidence was sufficient to show that the conduct was actually protected:
“This was a case, therefore, where a state court was shown not simply the arguable possibility of Labor Board jurisdiction over the controversy before it, but that the Board had actually determined the underlying issue upon which its jurisdiction depended” (emphasis added). Id., at 184.2
Thus, in Interlake, the Court was presented with actual determinations by the Board; under Garmon that is the only kind of showing sufficient to take the pre-emption decision out of the hands of the Board.
The present case underscores the signal merit of Garmon.3 Davis was fired for union activities. According to Davis, he was assured by the Union that, if fired, he could obtain reinstatement. Davis’ ability to obtain reinstatement turns on whether Davis is a supervisor. If Davis is a supervisor, the Act would not protect him against retaliatory actions by his
The crucial question then was whether Davis was a supervisor. The task of identifying supervisors is an “aging but nevertheless persistently vexing problem.” NLRB v. Security Guard Service, Inc., 384 F. 2d 143, 145 (CA5 1967). Supervisory status is an inherently fact-specific determination that turns on an individual‘s duties, not job title or classification. See, e. g., Winco Petroleum Co., 241 N. L. R. B. 1118 (1979) (giving an employee the title “supervisor” or even theoretical power to perform some supervisory functions does not convert a rank-and-file employee into a statutory supervisor); Pattern Makers Assn., 199 N. L. R. B. 96 (1972) (shop foreman with supervisory authority who worked with tools 40% of his time was supervisor despite contract which defined supervisory employees as persons who did not work with tools of trade). It is precisely because of the difficulty in assessing the statutory supervisory status of an individual, and the need for uniformity in the interpretation of the federal labor laws, that this Court, in Hanna Mining Co. v. Ma-rine Engineers, 382 U. S. 181 (1965), held that state law can be applied only if the supervisory status of the individuals in question “has been settled with unclouded legal significance.” Id., at 190. The supervisory status of Davis has never been settled by the Board.
Thus, in asserting that Davis was arguably a supervisor, the Union “advance[d] an interpretation of the Act that is not plainly contrary to its language and that has not been ‘authoritatively rejected’ by the courts or the Board.” Ante, at 395, quoting Interlake, 370 U. S., at 184. That is the only kind of showing that is properly required under Garmon.5
I therefore dissent from Part III of the Court‘s opinion and from its judgment.
Notes
“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.”
Supervisors as defined in this section are expressly not considered to be employees as defined in
Only employees as defined in
“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).”
Justice Harlan, whose concurrence in Garmon indicated his initial hesitancy to accept its categorical treatment of particular claims, came to embrace its approach, recognizing that any other would require this Court, as“Nor can we proceed on a case-by-case basis to determine whether each particular final judicial pronouncement does, or might reasonably be thought to, conflict in some relevant manner with federal labor policy. This Court is ill-equipped to play such a role and the federal system dictates that this problem be solved with a rule capable of relatively easy application, so that lower courts may largely police themselves in this regard.” Motor Coach Employees v. Lockridge, 403 U. S. 274, 289–290 (1971).
“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 7.
. . . . .
“(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. . . .”
“[A]lthough largely of judicial making, the labor relations pre-emption doctrine finds its basic justification in the presumed intent of Congress. While we do not assert that the Garmon doctrine is without imperfection, we do think that it is founded on reasoned principle and that until it is altered by congressional action or by judicial insights that are born of further experience with it, a heavy burden rests upon those who would, at this late date, ask this Court to abandon Garmon and set out again in quest of a system more nearly perfect.” 403 U. S., at 302.
In response to Trione‘s complaint, the Regional Director stated his conclusions as follows:
“As a result of the investigation, it appears that further proceedings on the charge [of a violation under Section 8 of the Act] are not warranted inasmuch as the evidence disclosed that Mr. Trione was employed as a supervisor within the meaning of Section 2(11) of the Act. For this reason, Section 8(a)(3) would not be applicable to his discharge inasmuch as ‘supervisors’ are specifically excluded from the definition of employee under the Act. Nor is there sufficient evidence to establish that Mr. Trione‘s discharge violated Section 8(a)(1) of the Act. I am, therefore, refusing to issue a complaint in this matter.” App. 62a-63a.
In the ordinary case, since a determination of pre-emption poses a jurisdictional bar to a court‘s adjudication of the merits of a suit, a defendant claiming pre-emption will do so at the threshold, usually in a motion to dismiss. Thus, courts will be called upon to determine pre-emption before facts have been developed or discovery has occurred. This poses a difficult burden for a defendant required, under today‘s decision, to present a factual showing. If a fair reading of the complaint leads to a possibility that the activity complained of may be protected or prohibited, then the case falls squarely within the reach of “arguably protected,” and the state court lacks jurisdiction over the dispute. See Construction Laborers v. Curry, 371 U. S. 542, 546 (1963).Given our longstanding interpretation of congressional intent regarding NLRA pre-emption under Garmon, this case is in all relevant respects the same as Kalb. Based on its constitutional power to regulate interstate commerce, Congress has created by statute a uniform body of laws governing labor relations and has vested in the National Labor Relations Board the exclusive jurisdiction over administration of those laws. And, although the exclusive nature of this jurisdiction was not explicitly noted by Congress, this Court has held that such exclusivity was intended by Congress. Enactment of such exclusive jurisdiction must, by operation of the Supremacy Clause, pre-empt conflicting state-court jurisdiction. That the entity chosen to administer those laws is administrative rather than judicial, as in Kalb, does not alter the pre-emptive effect of the federal law. Consequently, a procedural default in state court does not protect a state-court judgment from pre-emption.