concurring in the judgment.
H-1
Earlier this month, the Court unanimously reaffirmed the principle that the National Labor Relations Board’s construction of the National Labor Relations Act (NLRA), if reasonable, is entitled to deference from the courts. NLRB v. Transportation Management, Inc., 462 U. S. 393, 402-403 (1983). The Court today, it seems to me, ignores this fundamental premise of federal labor law in order to conform the substance of the NLRA to the contract and tort laws of the Commonwealth of Kentucky. Having done so, the Court not surprisingly concludes that those state laws are not preempted by the refashioned NLRA. I cannot participate in this extraordinary approach to labor law pre-emption. The Court recognizes that, “as the Board interprets the law, the employer must reinstate strikers at the conclusion of even a purely economic strike unless it has hired ‘permanent’ replacements, that is, hired in a manner that would ‘show that the men [and women] who replaced the strikers were regarded by themselves and the [employer] as having received their jobs on a permanent basis.’” Ante, at 501, quoting Georgia Highway Express, Inc., 165 N. L. R. B. 514, 516 (1967), aff’d sub nom. Truck Drivers and Helpers Local 728 v. NLRB, 131 U. S. App. D. C. 195, 403 F. 2d 921, cert. denied, 393 U. S. 935 (1968). See post, at 540-541, n. 13 (dissenting opinion). The Court holds today, however, that the employer may refuse to reinstate strikers at the end of an economic strike if the employer has promised its strike replacements “permanent employment, subject only to settlement with its employees’ union and to a Board unfair labor practice order,” ante, at 503 (emphasis supplied) — in other words, if the employer has promised that the jobs are permanent unless it later decides they are temporary. Such a promise bears little resemblance to a promise of permanent employment. During settlement negotiations, the union can be *514counted on to demand reinstatement for returning strikers as a condition for any settlement; the employer can be counted on to acquiesce, at a price the union certainly will be willing to pay.1
In rejecting the Board’s longstanding view of the Act, the Court does not pause to determine whether the Board’s view is reasonable, or whether it is contrary to the statutory mandate or frustrates Congress’ policy objectives. See FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27, 32 (1981); NLRB v. Brown, 380 U. S. 278, 291 (1965). Rather, it adopts an approach that itself is at wide variance with the NLRA. Under the Act, an employer may eliminate economic strikers’ jobs only by showing “ ‘legitimate and substantial business justifications.’” NLRB v. Fleetwood Trailer Co., 389 U. S. 375, 378 (1967), quoting NLRB v. Great Dane Trailers, Inc., 388 U. S. 26, 34 (1967). As the Court recognizes, this rule flows from the Act’s fundamental premise that economic strikers “retain their employee status and are entitled to reinstatement.” Ante, at 503; see post, at 525-527 (dissenting opinion). The employer may refuse reinstatement if it has promised permanent employment to replacements. But this is true only because such promises are deemed necessary to serve the employer’s legitimate and substantial business justification in seeking “to protect and continue his business by supplying places left vacant” by the strikers. NLRB v. Mackay Co., 304 U. S. 333, 345 (1938). *515See NLRB v. Erie Resistor Corp., 373 U. S. 221, 232 (1963). The Board reasonably has concluded that this purpose is served only by a promise that the job is not subject to cancellation at the employer’s option. Covington Furniture Mfg. Corp., 212 N. L. R. B. 214, 220 (1974), enf’d, 514 F. 2d 995 (CA6 1975).2 It is patently unreasonable to suppose that the promise the Court substitutes — that the replacements are permanent unless the employer decides otherwise— would further the employer’s legitimate goal at all. It is in order to allay the potential replacements’ fear that the employer will replace them as part of a settlement with the *516union that the employer must make the promise in the first place.
Indeed, an employer who makes a conditional promise has no legitimate, much less substantial, business justification to refuse to agree with the union to reinstate the strikers. Under the Court’s scenario, the employer has managed to operate its business by hiring replacements on the understanding that they may be fired as part of a settlement of the strike. And whether or not state contract and tort remedies are pre-empted by the Act, the employer can agree to reinstate the strikers at the replacements’ expense without incurring liability. The Court’s convoluted attempt to establish that its conditional promise would serve some legitimate business purpose, see ante, at 503-504, and n. 8, fails to come to grips with these simple facts.
The Court’s conditional promise achieves only one thing: it permits an employer, during settlement negotiations with the union, to threaten to retain replacement employees in preference to returning strikers despite the fact that the employer has not promised to do so. The naked interest in making such a threat, silently endorsed in the Court’s opinion, could not be less legitimate under the NLRA. From the employer’s point of view, one benefit of offering strike replacements permanent employment is that strikers become fearful that they will lose their jobs. But it is clear that creating this fear, which discourages union membership and concerted activities, is a deleterious side effect of, rather than a legitimate business justification for, the power to hire permanent strike replacements. See NLRB v. Erie Resistor Corp., 373 U. S., at 232. Promises of permanent employment, and subsequent retention of replacements, are permitted only because it is believed that the harm to protected activities is outweighed by the employer’s interest in operating its plant during a strike. Ibid. Thus, an employer who succeeds in operating the plant without promising permanent employment would have no legitimate basis for not reinstat-
*517ing economic strikers. In my view, having made only the Court’s conditional promise, an employer who threatened during strike negotiations to retain strike replacements in preference to economic strikers would commit an unfair labor practice. See 29 U. S. C. §§ 158(a)(1) and (3); cf. NLRB v. Gissel Packing Co., 395 U. S. 575, 618-620 (1969) (employer may predict adverse consequences of concerted activities flowing from “economic necessities” they engender, but may not make a “threat of reprisal” for engaging in concerted activities); NLRB v. Fleetwood Trailer Co., 389 U. S., at 378 (unjustified refusal to reinstate strikers at end of economic strike is unfair labor practice because it discourages excercise of right to strike).
The Board’s construction of the Act is reasonable and entitled to a deference that is wholly lacking in the Court’s opinion. By brushing aside the Board’s interpretation of the Act, and substituting its own novel construction, the Court sidesteps the real question in what is, as the dissent observes, post, at 523, “a difficult case.” The question presented is whether respondents’ state contract and tort actions are pre-empted by the Act, not whether the Act can be manipulated into a posture consistent with such lawsuits. Taking federal law as it is, however, while the question is close, I conclude that neither of respondents’ causes of action is pre-empted.3
II
A
I cannot easily dismiss the basic premises underlying either the Court’s opinion or the dissenting opinion. On the one hand, the dissent aptly observes that respondents’ state-*518law claims “go to the core of federal labor policy.” Post, at 524. One would not expect that Congress would have left anything so basic as the respective rights and duties of strike replacements and employers to the nonuniform regulation of the States. Cf. New York Tel. Co. v. New York State Labor Dept., 440 U. S. 519, 549 (1979) (concurring opinion). On the other hand, there is great strength in the bedrock of the Court’s position — it is difficult to believe that Congress could have intended to permit employers and unions “to injure innocent third parties without regard to the normal rules of law governing those relationships.” Ante, at 500.
Any attempt to reconcile these concerns, in my view, must begin with an analysis of the nature of the economic weapon at issue. The heart of the weapon is the power to hire replacements. The promise of permanent employment is simply one means of achieving this end, a means that unquestionably is permitted by the NLRA. The dissent appears to view the self-help weapon as the power to make such promises, and concludes that Congress intended that this power would be largely unregulated. See post, at 536-538. The Court appears to take a different view of the nature of the weapon, implying that the weapon properly is seen as the power to contract with replacement employees, not merely to promise permanent jobs, and that the normal state-law accompaniments of contracts were contemplated and accepted by Congress. See ante, at 500, 512.
I believe that the Court’s view is more consistent with the purposes and qualities of this particular economic weapon. One may agree with the dissent that permitting employers to hire replacement workers “is part of the balance struck by the Act between labor and management,” post, at 536, without conceding that all means of accomplishing this were meant to be unregulated. As noted above, the very purpose of enabling an employer to offer permanent employment to strike replacements is to permit the employer to keep its business running during a strike. If the promises of perma*519nent employment are unenforceable, “many putative replacements would know that the proffered job is, in important respects, nonpermanent and [might] not accept employment for that reason.” Ante, at 502. The dissent’s view that federal law intends those offers to be nonbinding would undermine the reason for permitting them. If the promises are enforceable under state law, however, they are credible; this is the only result consistent with the promises’ federal purpose.
Moreover, it is difficult to explain the employer’s power to prefer permanent strike replacements over returning economic strikers unless, through the promise of permanent employment, the employer has incurred an obligation to those replacements. The employer makes offers of permanent employment to induce replacement workers to take jobs. But what is the legitimate and substantial business justification for later refusing to reinstate returning strikers if, as a matter of federal law, the employer is entitled to discharge the replacements in derogation of its promises to them? This power to override the economic strikers’ statutory entitlement to reinstatement must be based on the common-sense notion that, in order to continue to operate the business, the employer was required to obligate itself to third parties in a manner inconsistent with the strikers’ right to subsequent reinstatement. Certainly, avoidance of liability for breach of contract is a legitimate business objective. Because federal law apparently does not obligate the employer to fulfill its promises to the replacements, it must be the typical state-law obligation to honor one’s commitments that justifies the employer’s disregard for the returning strikers’ otherwise paramount statutory entitlement.
B
Because this case does not fit comfortably within labor preemption doctrine as heretofore developed by this Court, see post, at 523-524,530, and n. 2 (dissenting opinion), and because I share the Court’s doubt that Congress could have intended *520to deprive strike replacements of any remedy for obvious wrongs, the considerations noted above lead me to affirm the judgment below, despite the complex problems identified in the dissent. Cf. New York Tel. Co. v. New York State Labor Dept., 440 U. S., at 549 (concurring opinion) (evidence indicated that Congress decided to tolerate interference with labor law policies caused by unemployment insurance laws). I am not persuaded by the dissent’s argument that the Machinists doctrine bars respondents’ causes of action, for I do not believe that “Congress intended that the conduct involved be unregulated because left ‘to be controlled by the free play of economic forces.’” Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132, 140 (1976), quoting NLRB v. Nash-Finch Co., 404 U. S. 138, 144 (1971). Unlike the self-help weapon at issue in Machinists, promising permanent employment to strike replacements involves offering to obligate oneself to third parties and inducing their reliance on that offer. In Machinists, the union’s refusal to work overtime did not involve the rights and duties of anyone but the union and the employer.4
The dissent’s suggestion that a state action for misrepresentation would frustrate the policies of the Act by making employers more hesitant to promise permanent employment, *521post, at 536-538, assumes that under the federal scheme the employer is not meant to hesitate. But I believe that the hesitation engendered by potential contract damages and damages for misrepresentation is as consistent with federal law as it is with common sense and decency. The “free play of economic forces” contemplated by Machinists is the clash of weapons used by employer and union against one another. The free play of economic forces does not control one party’s pursuit of its goals through imposition of harms on persons external to the dispute, because the economic contest creates no incentive for the other party to impose sanctions for such conduct. In the absence of protection for third parties’ rights, the free play of economic forces actually is distorted; the economic cost of a weapon is understated.5
Much more troubling is the dissent’s argument that the state-law action will discourage the settlement of strikes. Post, at 532-533. I agree that, where the employer has chosen to promise permanent employment to strike replacements, its potential liability to them would make the employer reluctant to settle by giving the strikers their old jobs. This problem, it seems to me, is inherent in Congress’ choice to permit employers to offer permanent employment in order to obtain replacements. The potential dilemma is one the employer must consider at the time it chooses whether to promise permanent employment. If it makes no promises, settlement will not be impeded.6
*522Finally, I cannot agree that the doctrine of San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), pre-empts respondents’ contract action. Of course, if the strike is an unfair labor practice strike and the employer has offered permanent employment to the replacements, federal labor law requires the employer to dismiss the replacements in derogation of his promise. As the dissent implicitly concedes, however, see post, at 530-531, n. 2, that conduct is “arguably required” does not necessarily mean it is “arguably protected” within the meaning of Garmon. Federal law did not require the employer to make the promise or to commit unfair labor practices. Moreover, as discussed above, once the promises are made and relied upon, I believe that federal law presumes they are in some manner enforceable. If federal law recognizes that the employer voluntarily has undertaken an obligation to the replacements, the fact that the employer commits an unfair labor practice making it impossible for it to fulfill that obligation should not shield the employer from compensating the replacement employees. Cf. W. R. Grace & Co. v. Rubber Workers, 461 U. S. 757 (1983).
) — I J — I HH
I fully recognize that this view may appear to put the employer between Scylla and Charybdis. Neither the Court’s approach, nor the dissent’s, however, provides the employer with a safer harbor. The Court’s concept of a conditional promise will not help the employer attract replacements, and if the employer wishes to make a meaningful promise, the Court’s opinion leaves the employer just where my approach *523would. And by draining all legal meaning from the promise of permanence, the dissent’s approach leaves employers unable to attract any but the most gullible and unfortunate of potential replacement employees.
Although I cannot believe that Congress has reconciled the conflict between the striker’s right to reinstatement and the employer’s right to operate its business during a strike by requiring lies and broken promises to strike replacements to go unredressed, Congress certainly is free to prove me wrong. Congress also is free to resolve the great tensions inherent in this complex three-way struggle entirely within the framework of federal law. Certainly, some form of federal regulation of promises of permanent employment is the most desirable solution to the perplexing problem before the Court, because it would provide both consistency within federal labor law itself and uniformity throughout the Nation. At this time, however, it appears to me that the logic of the Act permits respondents’ damages actions.
Accordingly, I concur in the judgment of the Court.
The Court’s suggestion that the employer’s conditional promise “is of great moment if the employer is not found guilty of unfair practices, does not settle with the union, or settles without a promise to reinstate,” ante, at 503, ignores the significant fact that this is the one situation for which a strike replacement would not need reassurances. An employer that refuses to reinstate strikers as a part of a strike settlement, when it could have demanded concessions from the union in exchange, is unlikely to fire the replacements and reinstate strikers unilaterally. The Court’s conditional promise does not relate to potential replacements’ concerns — that in order to end the strike, the employer will agree with the union to reinstate the strikers at the replacements’ expense.
As the Court’s own quotation from Hot Shoppes, Inc., 146 N. L. R. B. 802 (1964), demonstrates, ante, at 504-505, n. 8, that case is not to the contrary. Hot Shoppes merely holds that, in order to retain strike replacements, the employer need not show in a given case that its offers of permanent employment were motivated by the need to continue the operation of its business. As Mackay Co. makes clear, the Act gives the employer the right to make such promises because it is presumed that they serve this purpose, 304 U. S., at 345; the specific motive for a particular offer is irrelevant. In Hot Shoppes, as in this case, permanent offers were made. 146 N. L. R. B., at 804. Hot Shoppes obviously does not stand for the proposition that an employer not making an offer of permanent employment in the manner set forth in Covington Furniture may retain replacement employees in preference to strikers. Yet that is what the Court holds today.
The Court also quotes incompletely from the Board’s brief in this Court in an effort to demonstrate that the Board’s position is “equivocal at best,” and therefore not entitled to deference. Ante, at 505, n. 8. The full quote is as follows, and is very clear:
“An employer could not escape the dilemma posed by the threat of a state court fraud action simply by informing prospective replacements of all the contingencies that might affect their tenure. In the first place, if an employer were to extend only such a conditional offer, its ability to hire replacement workers quickly would be diminished and its chief weapon for combatting the employees’ strike pressure would consequently be weakened. Furthermore, such a conditional offer might well render the replacements only temporary hires and would mean that the employer would be obligated to reinstate the strikers even if the strike turned out to be an economic one. ...” Brief for NLRB as Amicus Curiae 17 (emphasis supplied).
This Court, and not the Board, reviews state-court lawsuits said to conflict with federal law. Although it is well established that the Board’s construction of the substantive scope of the NLRA is due deference, I am unaware of any case in which this Court has deferred to the Board’s views on pre-emption. Cf. ante, at 505, n. 8.
The right to hire replacements during a strike also differs from the self-help weapon at issue in Teamsters v. Morton, 377 U. S. 252 (1964), where Congress had proscribed specific types of secondary boycotts, but not the type of boycott there at issue. Id., at 258-260. Had Congress “focused upon,” id., at 261, the power to hire strike replacements and made clear, by omission, that strike replacements were to be left without a remedy for breach of contract or deliberate misrepresentation, these actions would be pre-empted. There is no evidence, however, that Congress focused on this question. Absent congressional attention, the Court must construe the Act and determine its impact on state law in light of the wider contours of federal labor policy. In this case, it appears to me that state enforcement of promises of permanent employment through damages awards for breach of contract and misrepresentation is consistent with the nature of the federal weapon itself.
In some circumstances, Congress has permitted parties to a labor dispute to impose harm on third parties with impunity. See, e. g., Teamsters v. Morton, 377 U. S. 252 (1964). But when Congress has granted such permission, it has done so with care. See n. 4, supra.
It is noteworthy, in light of the argument that permitting these state actions violates the rule in Machinists, that neither the Board nor the AFL-CIO can explain in whose favor such actions tip the collective-bargaining process. See Brief for NLRB as Amicus Curiae 18-19; Brief for AFL-CIO as Amicus Curiae 4-5. “Permanent” strike replacements will have certain rights, but employers will hesitate to make permanent *522offers; this hesitancy will redound to the benefit of striking unions, but those employers who do make such promises will hesitate to settle with the union on terms involving return of the strikers. And while the fact that the employer’s offers of permanent employment are legally meaningful will make them credible, thereby improving the employer’s ability to attract replacement workers during an economic strike, it also will make the offers more costly, and therefore less attractive, for the employer.