SCREEN EXTRAS GUILD, INC., et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; BARBARA SMITH, Real Party in Interest, 51 Cal. 3d 1017

Opinion PANELLI, J. A woman employed by a labor union as a business agent, not herself a member of the union, was discharged, allegedly for dishonesty and for insubordination. She sued the union and its executive secretary for wrongful discharge in breach of an employment contract, intentional and negligent infliction of emotional distress, and defamation. The union moved for

summary judgment on the ground that these claims were preempted by federal labor law. The trial court denied the motion; the Court of Appeal denied a petition for mandate. We granted review to consider the preemption issue. The Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 United States Code sections 401-531, mandates that labor unions be democratically governed. Democratic union governance dictates that elected union officials be responsive to the will of their union membership-electorate.

To effectuate this policy, elected union officials have the authority to discharge union employees in management or policymaking positions who do not, in their opinion, serve the union membership properly. Permitting former union employees who held management or policy-making positions to bring state actions against the unions which employed them, or against the officials of such unions, premised on their discharge, would undermine the ability of elected union leaders to effectuate the will and policies of the union membership they represent.

Thus, the strong federal policy favoring union democracy, embodied in the LMRDA, preempts state causes of action for wrongful discharge or related torts when brought against a union-employer by its former management or policymaking employee. Accordingly, we reverse the Court of Appeal. I. Facts and Proceedings Below The undisputed facts are as follows: The Screen Extras Guild (SEG) is a labor union comprised of motion-picture extra players and is governed by a constitution and bylaws. The governing body of SEG is the board of directors (Board), which is elected by and from the SEG membership by secret ballot.

Power to hire and discharge paid business representatives is vested solely with the Board. Barbara Smith (Smith) was employed by the SEG as a business agent from 1978 until she was discharged in 1986. Her job responsibilities included handling SEG members’ claims, filing claims and grievances by SEG members against the studios that employed them, settling wage claims, settling grievances, and granting waivers of certain terms of the collective bargaining agreement between SEG and various motion picture studios. Smith was considered a management employee.

Neva Brown (Brown) was the national executive secretary (NES) of SEG when Smith was discharged. The NES is the chief administrative officer of SEG. The NES, appointed by a majority vote of the Board, is authorized to recommend to the Board the appointment and removal of SEG employees, including SEG business agents. At a special Board meeting in June 1986, Brown read a statement criticizing Smith’s past job performance and recommended that Smith not be retained. This recommendation was accepted, and Smith was thereafter terminated by the Board.

Smith sued SEG for wrongful discharge in breach of the covenant of good faith and fair dealing. She also sued both SEG and Brown (collectively, the defendants) for intentional and negligent infliction of emotional distress and defamation. The defendants moved for

summary judgment on the ground that Smith’s claims were preempted by the LMRDA. The trial court denied the motion. The Court of Appeal summarily denied writ review. We granted the defendants’ petition for review and transferred the matter to the Court of Appeal with directions to issue an alternative writ. The Court of Appeal issued and ultimately discharged the alternative writ, denying the petition for a writ of mandate. We granted review to decide whether a union business agent’s claims for wrongful discharge and related torts against the union and its officials are preempted by the LMRDA. II.

Discussion A state action is preempted wherever it “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” (U.S. Const., art. VI, cl. 2; Brown v. Hotel Employees (1984) 468 U.S. 491, 501 [82 L.Ed.2d 373, 383, 104 S.Ct. 3179], quoting Hines v. Davidowitz (1941) 312 U.S. 52, 67 [85 L.Ed. 581, 587, 61 S.Ct. 399].) Preemption cases may be divided into two types: substantive or jurisdictional. Substantive preemption is based on federal protection of conduct that state law attempts to regulate or penalize. (Railroad Trainmen v.

Terminal Co. (1969) 394 U.S. 369, 383, fn. 19 [22 L.Ed.2d 344, 357, 89 S.Ct. 1109].) Jurisdictional preemption is based on protecting the primary jurisdiction, within a particular sphere of conduct, of federal regulatory bodies. (Ibid.) Both kinds of preemption advance congressional purposes, but “[s]ince congressional purposes can be either substantive or jurisdictional, a state action may be struck down as an invalid interference with the federal design either because it is in actual conflict with the substantive operation of a federal program, or because, whatever its substantive impact, it intrudes upon a field that Congress has validly reserved to the federal sphere [of regulation].” (Tribe, American Constitutional Law, supra, § 6-25 at p. 481.) The two types of preemption are analyzed differently.

Jurisdictional preemption involves balancing the competing federal and state interests at stake. In such cases, the magnitude of especially deep-rooted local interests underlying particular state causes of action may outweigh any resulting interference with federal jurisdiction. (See, e.g., Operating Engineers v. Jones (1983) 460 U.S. 669, 683 [75 L.Ed.2d 368, 380, 103 S.Ct. 1453].) On the other hand, if state law regulates conduct that is actually protected by federal law, preemption follows not as a matter of protecting the primary jurisdiction of federal regulatory bodies, but as a matter of substantive right.

Where the issue is one of substantive conflict with federal law, “[t]he relative importance to the State of its own law is not material. . . for the Framers of our Constitution provided that the federal law must prevail.” (Brown v. Hotel Employees, supra, 468 U.S. at p. 503 [82 L.Ed.2d at p. 384], citing Free v. Bland (1962) 369 U.S. 663, 666 [8 L.Ed.2d 180, 183, 82 S.Ct. 1089].) In such cases, state action is preempted, without balancing state and federal interests, by direct operation of the supremacy clause of the United States Constitution. (U.S. Const., art. VI, cl. 2; Brown v.

Hotel Employees, supra, 468 U.S. at p. 501 [82 L.Ed.2d at p. 383].) This case is not one involving jurisdictional preemption, as Smith’s claims do not implicate the jurisdiction of federal regulatory bodies. Therefore, addressing the substantive preemption issues in this case, our task is simply to determine whether there is an actual conflict between permitting Smith to pursue her state law causes of action and federal labor policy as embodied in the LMRDA. (Brown v.

Hotel Employees, supra, 468 U.S. at p. 503 [82 L.Ed.2d at p. 384].) State law is unquestionably preempted where a valid “act of Congress fairly interpreted is in actual conflict with the law of the State.” (Savage v. Jones (1912) 225 U.S. 501, 533 [56 L.Ed. 1182, 1195, 32 S.Ct. 715] [dictum]; see also Florida Avocado Growers v. Paul (1963) 373 U.S. 132, 142-143 [10 L.Ed.2d 248, 256-257, 83 S.Ct. 1210] [dictum]; McDermott v.

Wisconsin (1913) 228 U.S. 115, 132-133 [57 L.Ed. 754, 766, 33 S.Ct. 431].) Justice Arabian’s dissent acknowledges that while state laws that are merely in general tension with broad and abstract goals of federal legislation may not be preempted (see Commonwealth Edison Co. v.

Montana (1981) 453 U.S. 609, 633 [69 L.Ed.2d 884, 904-905, 101 S.Ct. 2946]; Tribe, American Constitutional Law, supra, § 6-26 at p. 487), “state law may be preempted under a conflict analysis if it frustrates the specific objectives underlying a federal enactment. . . .” (See dis. opn. of Arabian, J.,post, at p. 1042.) The “actual conflict” versus “general tension” inquiry focuses on whether the purportedly conflicting federal interest is sufficiently well defined and rooted in federal enactments to give rise to preemption. (See, e.g., Exxon Corp. v.

Governor of Maryland (1978) 437 U.S. 117, 129-133 [57 L.Ed.2d 91, 102-105, 98 S.Ct. 2207] [broad implications of Sherman Act and Robinson-Patman Act insufficient reasons for preempting Maryland Motor Fuel Inspection Law].) As discussed below, under the facts of this case, we believe that there is an actual conflict between the state wrongful discharge action advanced by Smith and the policies underlying the LMRDA. A. Wrongful Discharge. For the reasons hereinafter stated, we conclude that the LMRDA preempts Smith’s action for wrongful discharge against SEG.

In our view, to allow such actions to be brought by former confidential or policymaking employees of labor unions would be inconsistent with the objectives of the LMRDA and with the strong federal policy favoring union democracy that it embodies. The LMRDA was the product of congressional concern over abuses of power by union leadership. Inter alia, it regulates union trusteeships and elections.

Title I of the LMRDA, introduced under the title of “Bill of Rights of Members of Labor Organizations” (29 U.S.C. §§ 411-415), guarantees certain rights to union members, emphasizing those having to do with freedom of expression. The primary objective of the LMRDA, however, is to ensure that unions are democratically governed and responsive to the will of their memberships. (Finnegan v. Leu (1982) 456 U.S. 431, 435-436 [72 L.Ed.2d 239, 243-244, 102 S.Ct. 1867].) Elected union officials must necessarily rely on their appointed representatives to carry out their programs and policies.

As a result, courts have recognized that the ability of elected union officials to select their own administrators is an integral part of ensuring that union administrations are responsive to the will of union members. (Finnegan v. Leu, Supra, 456 U.S. at p. 441 [72 L.Ed.2d at p. 247]; Bloom v. General Truck Drivers (9th Cir. 1986) 783 F.2d 1356, 1361; Tyra v. Kearney (1984) 153 Cal.App.3d 921, 926 [200 Cal.Rptr. 716]; Montoya v. Local Union III of I.B.E.W. (Colo.Ct.App. 1988) 755 P.2d 1221, 1224.) In Finnegan v.

Leu, supra, 456 U.S. 431 [72 L.Ed.2d 239], union business agents, who were also union members, were discharged from their appointed positions by the union president following his election over a candidate supported by these business agents. They claimed that their discharge violated the “Bill of Rights” sections of the LMRDA. The United States Supreme Court upheld their discharge.

The court held that while the LMRDA generally protects union members’ rights of expression by limiting retaliatory discharges, it does not restrict the freedom of an elected union leader to choose staff members with views compatible to his own. (Finnegan, supra, 456 U.S. at pp. 440-442 [72 L.Ed.2d at pp. 246-248].) In reaching this conclusion, the high court held, contrary to Justice Eagleson’s apparent view (see dis. opn. of Eagleson, J., post, at p. 1034), that the primary objective of the LMRDA is to ensure union democracy. (Finnegan, supra, 456 U.S. at pp. 435-436 [72 L.Ed.2d at pp. 243-244].) The court found that, in view of this objective, Congress must have intended that elected union officials would retain unrestricted freedom to select business agents, or, conversely, to discharge business agents with whom they felt unable to work or who were not in accord with their policies. (Id. at p. 442 [72 L.Ed.2d at p. 248].) In Bloom v.

General Truck Drivers, supra, 783 F.2d 1356, a business agent sued the union that formerly employed him for wrongful discharge, alleging he had been fired for refusing to falsify minutes of an executive board meeting which authorized the expenditure of funds. Although the Ninth Circuit found that the business agent’s action was not preempted by the LMRDA, the court affirmed, on other grounds, a

summary judgment in favor of the union.

The court said the agent had failed to raise a genuine issue of material fact on the issue of the cause of his discharge, because he conceded that the firing took place in the context of his political rivalry with the union leadership and before he refused to falsify the minutes. (Bloom, supra, 783 F.2d at p. 1363.) In reaching this conclusion, the court observed that “[t]he federal interest in promoting union democracy and the rights of union members, therefore, includes an interest in allowing union leaders to discharge incumbent administrators.” (Bloom, supra, 783 F.2d at pp. 1361-1362.) In Tyra v.

Kearney, supra, 153 Cal.App.3d 921, Jean Tyra (Tyra), a union business agent, had challenged the incumbent secretary/treasurer in a union election. The incumbent was reelected and thereafter terminated Tyra’s employment. The trial court determined that Tyra’s subsequent claim for wrongful discharge was preempted by federal labor law. The Court of Appeal affirmed, holding that replacement of business agents by elected union officials is sanctioned by the LMRDA, and that to allow Tyra’s wrongful discharge claim would interfere with the effective administration of national labor policy. (Tyra v.

Kearney, supra, 153 Cal.App.3d at pp. 922-923; see also Montoya v. Local Union III of I.B.E.W., supra, 755 P.2d at p. 1224 [following Tyra].) We are persuaded that the same reasoning should be applied in this case. The core of Smith’s claim for wrongful discharge is that SEG discharged her in violation of the covenant of good faith and fair dealing in the employment contract between them. Absent federal preemption, California law provides a cause of action for wrongful discharge in violation of the covenant of good faith and fair dealing in an employment contract. (Foley v.

Interactive Data Corp. (1988) 47 Cal.3d 654, 700 [254 Cal.Rptr. 211, 765 P.2d 373] [limiting the availability of tort remedies].) Smith does not dispute that she was discharged by elected union officials. She argues instead that because her discharge by the Board was based on her alleged incompetence and dishonesty, and not on the basis of her disagreement with the policy goals of the elected officials of SEG, her claims do not implicate the LMRDA or its concerns about union democracy. The Court of Appeal, agreeing with Smith, and seeking to distinguish her case from that of the plaintiff in Tyra v.

Kearney, supra, 153 Cal.App.3d 921, reasoned that “[ujnion officials are not elected to breach contracts or commit torts and, if they do so, the fact they are ‘democratically elected’ is beside the point. This case has nothing to do with union democracy .... This is a garden-variety ‘wrongful termination’ case which just happens to be brought against a union . . . .” While this argument may have superficial appeal, it lacks merit in practice. Such a holding goes beyond the Bloom exception (supra, 783 F.2d 1356) and is inconsistent with the cases which permit union leaders to discharge incumbent administrators.

As Justice Eagleson acknowledges, the attempt to decide whether particular wrongful discharge claims do or do not implicate the LMRDA is unworkable in the real world. (See dis. opn. of Eagleson, J., post, at p. 1036, fn. 2.) In our view, allowing even “garden-variety” wrongful termination actions to proceed from the discharge of appointed union business agents by elected union officials would implicate the union democracy concerns of the LMRDA. “Replacement of business agents by an elected labor union official is sanctioned by the [LMRDA] and allowance of a claim under state law would interfere with the effective administration of national labor policy.” (Tyra v.

Kearney, supra, 153 Cal.App.3d at p. 923.) The separation of wrongful discharge allegations into those which involve terminations for policy reasons and those which involve only “garden-variety” terminations ultimately rests upon highly subjective determinations.

Smith, according to the Court of Appeal, was terminated because the Board believed she had been inefficient or dishonest in performing her duties— allegations which the Court of Appeal calls “garden variety.” But how are we to distinguish that kind of discharge from one where it is alleged that a confidential or policymaking employee worked inefficiently or dishonestly in response to, or created obstacles to the implementation of, union policies, adopted by elected union officials, which he or she opposed?

If a business agent, for example, were discharged for failing to efficiently adopt a new set of procedures for prioritizing routine tasks which had been endorsed by elected officials, should that be characterized as a termination to facilitate policy, or as a “garden-variety” termination for inefficiency? It is probably impossible to elaborate reliable objective indicators of the two theoretical types of discharges that creative lawyers will not be able to subvert.

And obviously, every wrongful discharge claim brought against a union by a business agent will be cast in “garden-variety” terms if that is all it takes to survive preemption. Consequently, the attempt to distinguish the two types of claims at the

summary judgment stage, as the Court of Appeal has done here, would require courts to make almost wholly subjective determinations. Because of the subjective nature of these determinations, many suits premised on discharges which are in fact policy based would nevertheless be permitted to proceed to trial. The expense of litigating wrongful discharge claims, as well as the risk of liability should a discharge ultimately be deemed “garden variety,” would surely have a chilling effect on all discharges.

But, as we have seen, Congress intends that elected union officials shall be free to discharge management or policymaking personnel. Thus, allowing such claims to proceed in the California courts would “restrict the exercise of the right to terminate which Finnegan found [to be] ‘an integral part of ensuring a union administration’s responsiveness to the mandate of the union election.’” (Tyra v. Kearney, supra, 153 Cal.App.3d at p. 927, citing Finnegan v.

Leu, supra, 456 U.S. at p. 441 [72 L.Ed.2d at p. 247].) Consequently, while the Court of Appeal thought it important for the purposes of preemption analysis to distinguish between claims against a union that relate to the purposes of the LMRDA and claims that are routine disputes between an employer and employee, the reverse is actually the case. It is important not to base a preemption rule on such a subjective distinction.

To do so would permit wrongful discharge claims against unions by business agents that would inhibit the ability of elected union officials to freely choose their staffs and would thus impermissibly frustrate full realization of the goals of the LMRDA. (See Montoya v. Local Union III of I.B.E.W., supra, 755 P.2d at p. 1223.) The Court of Appeal also sought to distinguish this case from Tyra v. Kearney, supra, 153 Cal.App.3d 921, on the ground that Smith’s discharge did not occur in the immediate aftermath of a union election. However, neither Tyra nor Finnegan v.

Leu, supra, 456 U.S. 431 [72 L.Ed.2d 239], upon which the Tyra court based its holding, nor Bloom (supra, 783 F.2d 1356) nor Montoya, which found an exception to Finnegan and Tyra, supports the idea that the freedom of elected union officials to choose their own staff exists only during some undefined period of time following union elections.

Though Tyra involved a recently elected secretary/treasurer, and Finnegan involved a recently elected union president, there is nothing in the words or reasoning of either opinion to suggest that federal labor policy would have been found less protective of the discharges upheld in those cases if they had occurred later in the administrations of the respective union officials involved.

Montoya, supra, stressed that in that case, as here, “the union’s bylaws (and its constitution) provided that the [elected] business manager had the authority to hire and fire its representatives and assistants at any time.” (Montoya v. Local Union III of I.B.E.W., supra, 755 P.2d at p. 1224 [italics added].) Tyra v. Kearney, supra, 153 Cal.App.3d 921, and Finnegan v.

Leu, supra, 456 U.S. 431 [72 L.Ed.2d 239], are both based on the realization that policymaking and confidential staff are in a position to thwart the implementation of policies and programs advanced by elected union officials and thus frustrate the ability of the elected officials to carry out the mandate of their election. (See Sheet Metal Workers v.

Lynn (1989) 488 U.S. 347, 354 [102 L.Ed.2d 700, 709, 109 S.Ct. 639] [explaining Finnegan).) Although it may be true that conflicts between elected officials and previously appointed staff most frequently surface soon after new officials are elected, the potential for a staff member to impede implementation of union officials’ programs does not automatically decrease or evaporate with the passage of time. The recency of the union elections in Finnegan and Tyra simply has no bearing on the applicability of those cases to this one.

As noted in Finnegan, the ability to freely select policymaking subordinates is an “integral part of ensuring a union administration’s responsiveness to the mandate of the union election.” (Finnegan v. Leu, supra, 456 U.S. at p. 441 [72 L.Ed.2d at p. 247].) To allow a state claim for wrongful discharge to proceed from the termination of a union business agent by elected union officials would interfere with the ability of such officials to implement the will of the union members they represent.

This would frustrate full realization of the goal of union democracy embodied by the LMRDA, in contravention of the supremacy clause. (U.S. Const., art. VI, cl. 2; Brown v. Hotel Employees, supra, 468 U.S. at p. 501 [82 L.Ed.2d at p. 383].) Consequently, the LMRDA and the supremacy clause preempt wrongful discharge claims brought against labor unions or their officials by former policymaking or confidential employees.

As we have previously noted, the preemptive effect of the LMRDA upon Smith’s wrongful discharge claim is substantive, not jurisdictional. (Ante, at p. 1023.) Smith was not and is not a member of the SEG. Only union members are expressly protected by the provisions of the LMRDA. (Bloom v. General Truck Drivers, supra, 783 F.2d at p. 1361.) Thus, the LMRDA does not, by its terms, apply to Smith, and she does not enjoy the guaranties of its “Bill of Rights of Members of Labor Organizations” (29 U.S.C. §§ 411-415), previously mentioned.

Smith’s cause of action is preempted substantively because such suits pose “ . . an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ ” (Brown v. Hotel Employees, supra, 468 U.S. at p. 501 [82 L.Ed.2d at p. 383]) in enacting the LMRDA. The Court of Appeal declared that there was “no showing that [Smith] had anything to do with establishing union policy or that her firing had anything to do with her views on union policy.” This raises the question whether Smith’s wrongful discharge claim falls within the preempted class of claims described above.

Smith, as a union business agent with significant decisionmaking responsibility for the implementation of SEG policies and their application to individual cases, was among that group of policymaking or confidential employees the selection of which federal labor policy leaves to the unfettered discretion of elected union officials. Union business agents “have significant responsibility for the day-to-day conduct of union affairs.” (Finnegan v. Leu, supra, 456 U.S. at pp. 441-442 [72 L.Ed.2d at pp. 247-248]; Bloom v.

General Truck Drivers, supra, 783 F.2d at p. 1357.) Business representatives are expressly recognized in the LMRDA to be “key administrative personnel” (29 U.S.C. § 402(q)) who “occupy positions of trust in relation to [labor] organization[s] and [their] members as a group.” (29 U.S.C. § 501(a).) Functionally, the business agent is at the forefront of implementing union policy, linking the union member and the upper echelons of the union bureaucracy. It is the business agent who responds to workers’ grievances and who often selects which ones to pursue.

The business agent makes strategic decisions regarding pursuit of collective bargaining and is frequently the chief organizer of strikes. The business agent is charged with seeing that the union contract is enforced and makes a number of discretionary decisions in that regard. (See Kennedy et al., The Business Agent and His Union (U.C. Berkeley Institute of Industrial Relations, 2d ed. 1964) pp. 35-51.) Smith, for example, could decide to waive certain union rules in the case of some employers.

In short, for many union members, the business agent is the union, the chief representative of union policies. (Ibid.) Smith herself acknowledges, as did the Court of Appeal, that she was considered a management employee. Even her “limited discretion to settle claims and waive certain provisions of the union contract with signatory employers” distinguishes her from “rank-and-file” union employees. (See Finnegan v.

Leu, supra, 456 U.S. 442, 443 [72 L.Ed.2d at p. 248] (conc. opn. of Blackmun, J.).) For the foregoing reasons, we hold that former union business agent Smith’s action for wrongful discharge against her former union-employer, SEG, is preempted by the LMRDA and the strong federal policy favoring union democracy it embodies. B. Smith’s Other Claims. Smith sued Brown, as well as SEG, for infliction of emotional distress and defamation. We believe that the result as to Brown must be the same as to SEG. These claims are simply Smith’s wrongful termination claim in other garb.

The facts Smith alleged to underlie these causes of action are essentially the same as those which underlie her action for wrongful discharge (i.e., the fact and circumstances of her discharge). Smith alleges no significant additional tortious activity on the part of Brown or SEG. We look to the substance of the claim, not its characterization, to determine whether an action is preempted by federal labor law. (DeTomaso v. Pan American World Airways, Inc. (1987) 43 Cal.3d 517, 527 [235 Cal.Rptr. 292, 733 P.2d 614], cert, denied 484 U.S. 829 [98 L.Ed.2d 60, 108 S.Ct. 100], citing Andrews v.

Louisville & Nashville R. Co. (1972) 406 U.S. 320 [32 L.Ed.2d 95, 92 S.Ct. 1562].) Because Smith’s claimed damages for infliction of emotional distress and from defamation all flow from her allegedly wrongful dismissal, these causes of action are barred by the LMRDA for the same reasons that her cause of action for wrongful discharge is barred. (Ibid.) We need not, and do not, decide whether the same would have been the case if, in connection with the emotional distress and defamation causes of action, significant additional tortious activity had been alleged against SEG or Brown.

We recognize that our holding has the inevitable consequence of denying to Smith, and to other potential plaintiffs in similar circumstances, a remedy which is otherwise available to some classes of employees in this state. However, in enacting the LMRDA, “Congress simply was not concerned with perpetuating appointed union employees in office at the expense of an elected president’s freedom to choose his own staff.” (Finnegan v.

Leu, supra, 456 U.S. at p. 442 [72 L.Ed.2d at p. 248].) We are thus compelled to recognize that “the wide scope of federal regulation of labor unions does not permit [the] application [of all of California wrongful discharge law] to employees of unions.” (Tyra v. Kearney, supra, 153 Cal.App.3d 921, 927 (conc. opn. of Crosby, J.).) III. Disposition The judgment of the Court of Appeal is reversed. The cause is remanded to the Court of Appeal with directions to issue a writ of mandate directing the trial court to enter

summary judgment for the defendants as to all causes of action. Lucas, C. J., Mosk, J., and Kennard, J., concurred. The Court of Appeal observed that a material issue of fact may have existed as to whether Smith was fired after having taken an approved two-month leave of absence, or whether she was refused employment after she in effect voluntarily resigned by taking advantage of a special “temporary retirement” benefit then permitted by the rules of the Motion Picture Industry Pension Plan, in which she participated. For the purposes of SEG’s motion for

summary judgment, however, both parties, the trial court, and the Court of Appeal assumed Smith was discharged. We will do likewise. Justice Arabian’s dissent merely iterates the truism that “[p]reemption of state law by federal statute or regulation is not favored ‘in the absence of persuasive reasons ....’” (See dis. opn. of Arabian, J., post, at p. 1042, quoting Chicago & N. W. Tr. Co. v. Kalo Brick & Tile Co. (1981) 450 U.S. 311, 317 [67 L.Ed.2d 258, 264-265, 101 S.Ct. 1124].) As will become apparent, we find the reasons for application of preemption in this case amply persuasive.

Preemption cases, of course, may be subject to classification in a variety of ways. The substantive/jurisdictional distinction, which classifies according to the type of interest being protected, is only one of several possible taxonomies.

We have no quarrel with Justice Arabian’s observation that “[traditionally, the United States Supreme Court has grouped and analyzed preemption cases in three categories [i.e., express preemption, implied preemption, and ‘conflict’ preemption]” (dis. opn. of Arabian, J., post, at p. 1039). (See also Tribe, American Constitutional Law (2d ed. 1988) § 6-25, p. 481, fn. 14.) We decline to enter into a controversy with Justice Arabian as to which scheme for classification of preemption cases is most elegant.

As Justice Arabian correctly observes, “[w]hile analytically useful, these divisions are not rigidly distinct.” (Dis. opn. of Arabian, J.,post, at p. 1039, fn. 1.) We note Justice Arabian’s acknowledgement, consistent with our substantive/jurisdictional categorization, that “[a] distinction has been made . . . between preemption based on federal protection of the conduct in question and that based on the need to protect the primary jurisdiction of the National Labor Relations Board.” (Dis. opn. of Arabian, J., post, at p. 1040.) Justice Arabian, ultimately, does not appear to quarrel with our conclusion that this case is not one involving jurisdictional preemption and that, therefore, the proper inquiry is to determine whether permitting Smith’s state cause of action “actually conflicts” with “accomplishment and execution of the full purposes and objectives of Congress” (Hines v.

Davidowitz, supra, 312 U.S. at p. 67 [85 L.Ed. at p. 587]) as embodied in the LMRDA. (See dis. opn. of Arabian, J., post, at pp. 1040-1041.) As we have explained (ante, at p. 1023), only in cases of jurisdictional preemption should a court conduct a balancing of federal interests against state interests. The Bloom court, while acknowledging that preemption was a complex and difficult area of the law, failed to distinguish between substantive and jurisdictional preemption.

Accordingly, the court improperly assumed that the question of LMRDA preemption “requirefs] us to balance state and federal interests, although the relative importance attached to each interest is unclear.” (Bloom, supra, 783 F.2d at p. 1360, fn. omitted.) Using a balancing approach, the court concluded that, since the case before it involved a discharge allegedly in retaliation for refusal to violate a state criminal statute, the federal interest in promoting union democracy was very weak, so as to be outweighed by the strong state interest in enforcing its criminal laws. (Id. at p. 1362.) The court distinguished Finnegan v.

Leu, supra, and Tyra v. Kearney, supra, on the grounds that “the discharge of the employee [in those cases] was central to the concern of federal labor policy, and a state cause of action would have interfered with the federal regulatory scheme.” (Bloom, supra, at p. 1362.) We need not speculate as to whether the Bloom court reached the right conclusion regarding LMRDA preemption, despite what we believe to be its use of an inappropriate type of preemption analysis.

We observe only that the court was of the opinion that “[t]he kind of discharge alleged, retaliation for refusal to commit a crime and breach a trust, is not the kind sanctioned by the [LMRDA], or by the courts in Finnegan and Tyra.” (Bloom, supra, at p. 1362.) This suggests that, had the court employed the “actual conflict” type of preemption analysis called for in these types of cases (Brown v. Hotel Employees, supra, 468 U.S. at p. 503 [82 L.Ed.2d at p. 384]), it would not have found a conflict with the LMRDA and thus would have reached the same result.

The Bloom court’s holding that the business agent’s action was not preempted by the LMRDA was limited to a consideration of the agent’s allegations that his discharge was in retaliation for his refusal to commit a crime.

The court was careful to note “[that] [w]e need not decide, however, whether allowing a state cause of action for wrongful discharge would generally undermine [the] federal interest and rob the union leaders of discretion needed to serve the wishes of the membership and thus the purposes of the [LMRDA].” (Bloom, supra, at p. 1362.) Unlike Bloom, the case before us does not involve a discharge claim based on an employee’s unwillingness to violate or conceal a violation of a criminal statute. Bloom found an exception to LMRDA preemption in such circumstances. (See also Montoya v.

Local Union III of I.B.E.W„ supra, 755 P.2d at p. 1224.) In Montoya, supra, the Colorado Court of Appeals reversed a

summary judgment dismissing an assistant union business manager’s state law action for wrongful discharge. In doing so, the court stated, “We adopt the rationale of Tyra v.

Kearney, supra, and hold that the plaintiff’s . . . claims . . . are preempted by federal law, except insofar as the Bloom exception applies.” (Ibid.) Because the court below had not considered whether the Bloom exception might apply, the Montoya court remanded the matter for further consideration. (Ibid.) Nor is it important that Smith was discharged by a board of directors upon the recommendation of an appointed official, rather than directly by a union president, as was the plaintiff in Finnegan. The SEG Board members were democratically elected by vote of the union membership.

Federal labor law protects the freedom of all democratically elected union leaders to choose staff with views compatible to their own. (Finnegan v. Leu, supra, 456 U.S. 431, 441 [72 L.Ed.2d at p. 247].) The discharge upheld in Tyra, for example, was effected by the secretary/treasurer of the union involved. (Tyra v.

Kearney, supra, 153 Cal.App.3d at p. 922.) In Sheet Metal Workers, the high court affirmed a Ninth Circuit ruling that Finnegan’s principle of preserving an elected union official’s prerogative to discharge policymaking subordinates did not control where the discharged employee was himself an elected official discharged in retaliation for exercising a right expressly protected by the LMRDA. (Sheet Metal Workers v.

Lynn, supra, 488 U.S. 347, 355-358 [102 L.Ed.2d 700, 710-712].) Justice Arabian incorrectly characterizes Sheet Metal Workers as making “the distinction between a union official’s exercise of union patronage, and his or her power to hire and fire as an ordinary employer. . . .” (See dis. opn. of Arabian, J,,post, at p. 1048.) In support of this characterization, Justice Arabian says that the Sheet Metal Workers “court carefully examined the purposes of the LMRDA, and determined that this discharge did not promote the purpose of ‘union democracy.’ ” (See dis. opn. of Arabian, J., post, at p. 1048.) The plaintiff in Sheet Metal Workers, however, brought suit in federal court under

section 102 of the LMRDA. (Sheet Metal Workers, supra, 488 U.S. at p. 350 [102 L.Ed.2d at p. 707].) He did not bring a suit for wrongful discharge under state law. Sheet Metal Workers is not a preemption case. In fact, we have searched the text of that opinion and are unable to find any reference either to preemption or to any state cause of action at all.

In reality, though express provisions of the LMRDA operated to invalidate the discharge disputed in Sheet Metal Workers, the high court in that case stressed the link first articulated in Finnegan between an elected union official’s freedom to discharge subordinate employees and the attainment of union democracy, noting that “[i]n Finnegan, this goal was furthered when the newly elected union president discharged the appointed staff of the ousted incumbent.

Indeed, the basis for the Finnegan holding was the recognition that the newly elected president’s victory might be rendered meaningless if a disloyal staff were able to thwart the implementation of his programs.” (Sheet Metal Workers v. Lynn, supra, 488 U.S. at pp. 354-355 [102 L.Ed.2d at p. 709]. Nor are Smith’s state causes of action saved from preemption by three clauses of the LMRDA which deal with the preemptive effect of that act. Title 29 United States Code

section 413 (“Nothing contained in this subchapter shall limit the rights and remedies of any member of a labor organization under any State or Federal law . . . .”) and 29 United States Code

section 523(a) (“ . . . nothing in this

chapter shall take away any right or bar any remedy to which members of a labor organization are entitled under . . . Federal law or law of any State.”) save only causes of action enjoyed by union members. (Bloom v. General Truck Drivers, supra, 783 F.2d at p. 1360.) Just as Smith is not entitled to the substantive protections of the LMRDA, she cannot enjoy its savings clauses. (Ibid.) Title 29 United States Code

section 524 saves only state criminal laws and thus cannot save Smith’s civil action. (Ibid.) We leave open the question whether a different result might obtain in a case involving nonpolicymaking and nonconfidential employees. (See Finnegan v. Leu, supra, 456 U.S. at p. 441, fn. 11 [72 L.Ed.2d at p. 247].) Smith does not allege conduct on the part of SEG officials “so outrageous that ‘no reasonable [person] in a civilized society should be expected to endure it’ ” (Farmer v.

Carpenters (1977) 430 U.S. 290, 302 [51 L.Ed.2d 338, 351, 97 S.Ct. 1056] [no preemption of emotional distress claim alleging threats and intimidation causing emotional distress resulting in bodily injury]). Our decision today, of course, should not be read to suggest that causes of action for defamation or for intentional infliction of emotional distress are automatically preempted along with wrongful discharge claims when a discharge is accompanied by such conduct.