March 11, 2011 – William R. Humphries v. Pay and Save, Inc., a/k/a Lowe’s Grocery # 55 and Tim Cotton, No. 29,197

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: March 11, 2011

NO. 29,197

WILLIAM R. HUMPHRIES,
Plaintiff-A ppellant,

V.

PAY AND SAVE, INC., a/k/a LOWE’S
GROCERY #55 and TIM COTTON,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James W. Counts, District Judge

Steven K. Sanders & Associates, LLC
Steven K. Sanders

Albuquerque, NM

for Appellant

Littler Mendelson, P.C.
R. Shawn Oller
Phoenix, AZ.

for Appellees

OPINION
KENNEDY, Judge.
{1} 	Plaintiff William R. Humphries argues the district court improperly dismissed
his claims. He alleged below that his employers Pay and Save, Inc., and Tim Cotton
(collectively Defendants) improperly terminated his employment on suspicion that he
engaged in union-organizing activities. The district court concluded that federal labor
law preempted Plaintiff’s claims. We agree and affirm.
BACKGROUND
{2} 	On May 13, 2008, Plaintiff filed a complaint in the district court seeking relief
on six counts: (1) breach of contract; (2) breach of the covenant of good faith and fair
dealing; (3) negligent or intentional misrepresentation; (4) wrongful termination; (5)
tortious interference with contractual relations (against Tim Cotton individually); and
(6) declaratory relief. 	All counts relied on the same core of common facts.
Specifically, Plaintiff alleged that until he was terminated on February 23, 2006, he
had been employed as a produce manager for five years at Lowe’s Grocery #55 in
Alamogordo, New Mexico. Appellee Pay and Save, Inc., owns and operates Lowe’s
Grocery #55, and Appellee Tim Cotton was the store manager at the time Plaintiff was
terminated. 	Plaintiff alleged that although he had never been “reprimanded or
disciplined . . . in any manner,” Defendants fired him because they “believed [he] was

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involved in organizing the employees of Lowes.” Plaintiff contended that termination
in this manner was unjust and that Defendants’ actions resulted in numerous injuries
for which he sought compensation. Plaintiff’s complaint for wrongful termination
specifically asserted Appellees’ violation of state public policy that encourages the
right to form, join, organize, and collectively bargain as a member of a labor
organization.
{3} 	On July 7, 2008, Defendants filed a motion to dismiss the complaint. 	In
pertinent part, they argued that pursuant to Rule 1-012(B)(1) NMRA and Rule 1-
012(B)(6) NMRA, the federal labor law vested the National Labor Relations Board
(NLRB) with exclusive and primary jurisdiction over Plaintiff’s claims. Citing San
Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), Defendants argued
that the facts underlying Plaintiff’s claims, if true, constituted an unfair labor practice
under the National Labor Relations Act (NLRA), 29 U.S.C. § 157 (1947) and 29
U.S.C. § 158 (1974). 	As such, the claims were expressly preempted under long-
standing Supreme Court precedent. Defendants further argued that if Plaintiff were
to claim status as a “supervisor” outside the NLRA, his claims would still be
preempted under the Supreme Court’s holdings in Beasley v. Food Fair of North
Carolina, Inc., 416 U.S. 653 (1974), and Lodge 76, International Association of

1 Plaintiff withdrew this NLRB complaint before it received consideration.
3
Machinists & Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations
Commission, 427 U.S. 132 (1976). As an exhibit to their motion, Defendants included
a photocopy of a retaliatory discharge claim Plaintiff made to the NLRB before filing
the present complaint. Dated August 4, 2006, that claim describes Plaintiff’s status
as an “employee.” 	Plaintiff argued in his response to the motion to dismiss that
neither Garmon, Beasley, nor Machinists were dispositive. He instead contended that
because his claims did not require interpretation of a collective bargaining agreement,
preemption did not apply. 1
{4} 	The district court held a hearing on Defendants’ motion via conference call, and
at its conclusion, the district court granted Defendants’ motion on the basis of federal
preemption. It found that each of Plaintiff’s claims was based on Defendants alleged
belief that Plaintiff “was engaged in union activity” and found that claims involving
termination for such activities constituted a “federal issue.”
{5} 	Plaintiff now appeals the district court’s dismissal of his complaint. 	He
contends that because his claims for breach of contract, breach of the covenant of
good faith and fair dealing, misrepresentation, wrongful termination, and tortious
interference do not originate in a collective bargaining agreement, they do not

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implicate federal labor law and are therefore not preempted. Plaintiff contends that
because these claims are based exclusively on state law, they should be resolved in
state court. He also argues that there is no reason why his other allegations cannot
remain viable, even assuming his claim for wrongful termination is preempted. As
such, Plaintiff contends the district court was incorrect in refusing jurisdiction of all
counts in his complaint without considering each individually. 	We consider these
arguments below.
DISCUSSION
A. 	Standard of Review
{6} 	Motions to dismiss under Rules 1-012(B)(1) and 1-012(B)(6) are reviewed de
novo. See Holguin v. Tsay Corp., 2009-NMCA-056, ¶ 9, 146 N.M. 346, 210 P.3d 243
(“We review a district court’s ruling on a Rule 1-012(B)(1) lack of subject matter
jurisdiction issue de novo.”); Healthsource, Inc. v. X-Ray Assocs. of N.M, P.C., 2005-
NMCA-097, ¶ 16, 138 N.M. 70, 116 P.3d 861 (“A district court’s decision to dismiss
a complaint for failure to state a claim [under Rule 1-012(B)(6)] is reviewed de
novo.”). In such cases, we test “the legal sufficiency of the complaint, not the factual
allegations of the pleadings[,] which . . . the court must accept as true.” Healthsource,
Inc., 2005-NMCA-097, ¶ 16. Likewise, this Court has applied a de novo standard to

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questions of federal preemption. Weise v. Wash. Tru Solutions, L.L.C., 2008-NMCA-
121, ¶ 9, 144 N.M. 867, 192 P.3d 1244; Hadrych v. Hadrych, 2007-NMCA-001, ¶ 5,
140 N.M. 829, 149 P.3d 593.
B. 	Federal Preemption Generally
{7} 	Federal preemption derives from the Supremacy Clause of Article VI of the
United States Constitution. 	Largo v. Atchison, Topeka, & Santa Fe Ry. Co., 2002-
NMCA-021, ¶ 6, 131 N.M. 621, 41 P.3d 347. 	The doctrine ensures uniformity in
federal policies by protecting against the potentially dilutive effects of state legislation
and judicial interpretation. 	Id. 	New Mexico’s courts maintain a strong preference
against the doctrine. Id. As a result, we apply it only in situations where Congress
has announced a “clear and manifest purpose” for us to do so. 	Montoya v. Mentor
Corp., 1996-NMCA-067, ¶ 8, 122 N.M. 2, 919 P.2d 410 (internal quotation marks and
citation omitted). 	Thus, congressional intent often arises in the heavily regulated
landscape of federal labor law. Preemption may apply in a variety of ways and a few
have been discussed by New Mexico’s appellate courts in recent years. 	See, e.g.,
Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 33-34, 127 N.M. 282, 980 P.2d 65
(analyzing preemption under the NLRA and Garmon); Weise, 2008-NMCA-121, ¶¶ 7-
9 (discussing preemption under both the NLRA and Section 301 of the LMRA);

6
Kerschion v. Pub. Serv. Co. of N.M., 2002-NMCA-045, ¶¶ 6-8, 132 N.M. 119, 45 P.3d
59 (discussing preemption under Section 301 of the Labor Management Relations Act
(LMRA), 29 U.S.C. § 185(a) (2000)). This case requires us to consider three types
of federal labor law preemption.
{8} 	First, under Section 301 of the LMRA, federal courts maintain exclusive
jurisdiction over all disputes requiring interpretation of a collective bargaining
agreement. 	Kerschion, 2002-NMCA-045, ¶ 6. 	Second, state courts may not
adjudicate a matter that arguably falls under Sections 7 or 8 of the NLRA. 	Those
sections prohibit several unfair labor practices, and Congress has vested the NLRB
with exclusive jurisdiction to decide claims implicating them. Dominguez v. Excell
Agent Servs., L.L.C., 137 F.Supp.2d 1264, 1265-66 (D.N.M. 2001).
{9} 	Third, in Machinists, the United States Supreme Court recognized that even
though some labor practices fall outside the restrictions of Sections 7 and 8 of the
NLRA, such practices were intentionally omitted by Congress for the benefit of
parties engaged in labor negotiations. Practices of this type are “weapons” intended
by Congress “to be controlled by the free play of economic forces.” Machinists, 427
U.S. at 140, 147; see Beasley, 416 U.S. at 661-62 (discussing the claims of
supervisors, though specifically excluded from protection under the NLRA, may not

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be decided by state courts in the interest of uniform national labor policy). As such,
the NLRB maintains exclusive jurisdiction over them also. Machinists, 427 U.S. at
140, 147.
{10} 	We consider each type of preemption below. While Plaintiff is correct that his
claims are not preempted by Section 301 of the LMRA, we hold that his claims still
fail under Garmon, Beasley or Machinists, regardless of whether we consider him an
employee or a supervisor under the NLRA.
C. 	Section 301 of the LMRA
{11} 	Section 301 preemption applies where the scope of the parties’ relationship is
defined by either a collective bargaining agreement “between an employer and a labor
organization” or a contract among labor organizations. 	Weise, 2008-NMCA-121,
¶ 29; see Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 412 (1988) (holding
that state law claims for retaliatory discharge are preempted by Section 301 to the
extent they require interpretation of a collective bargaining agreement). 	When a
party’s claim requires interpretation of such an agreement, the federal courts exercise
exclusive jurisdiction. Lingle, 486 U.S. at 401, 413; see Kerschion, 2002-NMCA-045,
¶ 6 ( stating that Section 301 preempts “claims raised in state court that require the
interpretation or application of a collective-bargaining agreement”). 	Section 301

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provides that:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce
. . . or between any such labor organizations, may be brought in any
district court of the United States having jurisdiction of the parties,
without respect to the amount in controversy or without regard to the
citizenship of the parties.
29 U.S.C. § 185(a). We have interpreted this language to forbid states from deciding
matters under state law that are more appropriately analyzed under federal law as
“duties assumed in collective-bargaining agreements.” Kerschion, 2002-NMCA-045,
¶ 6 (quoting Livadas v. Bradshaw, 512 U.S. 107, 122-23 (1994)). 	This process
ensures state law will not frustrate Congressional intent by determining “questions
[related] to what the parties to a labor agreement agreed, and what legal consequences
were intended to flow from breaches of that agreement.” Id.
{12} 	Plaintiff argues his claims are not preempted because his relationship with
Defendants was not governed by a collective bargaining agreement, he cites Mowry
v. United Parcel Service, 415 F.3d 1149 (10th Cir. 2005), Garley v. Sandia Corp., 236
F.3d 1200 (10th Cir. 2001), and Jarvis v. Nobel/Sysco Food Services Co., 985 F.2d
1419 (10th Cir. 1993), for support. To the extent Section 301 preemption might apply
in this case, Plaintiff is correct. Neither the pleadings nor the record alert the court to
the existence of a collective bargaining agreement or a labor union among the

9
employees at Pay and Save. In this context, Section 301 does not preempt Plaintiff’s
claims.
{13} 	Yet, several types of federal preemption are applicable in the labor law context,
and the absence of preemption under Section 301 does not void preemption from other
sources. Plaintiff fails to analyze other types of preemption, specifically preemption
under Garmon, Beasley, or Machinists. 	We now analyze Garmon, Beasley, and
Machinists and conclude that Appellees’ reading of the case law is consistent with our
own.
D. 	Garmon Preemption
{14} 	In Weise, this Court analyzed Garmon preemption in detail. 	Under that
doctrine, whenever a disputed activity “is arguably subject to Section 7 or Section 8
of the NLRA, the States as well as the federal courts must defer to the exclusive
competence of the NLRB if the danger of state interference with national policy is to
be averted.” 	Weise, 2008-NMCA-121, ¶ 8 (alterations omitted) (internal quotation
marks and citation omitted). In pertinent part, Section 7 of the NLRA provides that,
“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

2 We note that this language is repeated almost verbatim, in paragraph 24 of
Plaintiff’s complaint, asserting that Appellee’s violating these principles is the basis
for Plaintiff’s wrongful termination claim.
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other mutual aid or protection.” 29 U.S.C. § 1572 ; see Weise, 2008-NMCA-121, ¶ 8.
Section 8 forbids several unfair labor practices, including: 	(1) interfering with an
employee’s rights under Section 7; (2) interfering with or dominating “the formation
or administration of any labor organization”; (3) basing hiring decisions on union
membership; (4) terminating an employee for filing charges or giving testimony under
the NLRA; and (5) refusing to bargain collectively with union representatives. 29
U.S.C. § 158(a); see Weise, 2008-NMCA-121, ¶ 8 (stating that preemption precludes
consideration of Section 7 activities of the NLRA by state courts).
{15} 	Garmon preemption functions to maintain a uniform national labor policy, but
has several exceptions. Weise, 2008-NMCA-121, ¶ 9. For instance, states maintain
jurisdiction over matters that present only “peripheral concern[s] to the NLRA, such
as slander by an employer or retaliation for filing a worker’s compensation claim.”
Dominguez, 137 F. Supp. 2d at 1266. States also maintain jurisdiction over claims
involving acts of violence or disturbance, damage to property, and matters “so deeply
rooted in local feeling and responsibility that [it] could not [be inferred] that Congress
had deprived the States of the power to act.” 	Machinists, 427 U.S. at 136 (internal

11
quotation marks and citation omitted). The test for applying Garmon preemption has
been described as “whether the substance of the dispute is the same under both the
NLRA and state law.” Dominguez, 137 F. Supp. 2d at 1266. If so, the dispute must
be heard by the NLRB. 	Id. 	Even in cases where it is unclear whether the NLRA
prohibits the activity, “courts are not the primary tribunals to adjudicate the issue;
instead, such a determination must be left in the first instance to the NLRB.” Id. at
1265.
In other words, when an activity is arguably subject to Section 7 or 8 of
the NLRA, state and federal courts must defer to the competence of the
NLRB to avoid state interference with national labor policy. 	[The
United States District Court] must first decide whether there is an
arguable case for preemption; if there is, the Court must defer to the
NLRB, and the Court may not entertain this case unless the NLRB has
decided that the activity is not governed by Section 7 or 8.
Id. at 1265-66 (citation omitted).
{16} 	The analysis in Dominguez aligns closely with the facts of the case before us.
In Dominguez, the plaintiff filed suit under state law against his employer, alleging he
was terminated for pro-union beliefs and past union activities. 	Id. at 1265. 	The
employer filed a motion to dismiss on the basis of NLRA preemption, which the court
granted. 	Id. 	The court concluded that, “the conduct that forms the basis of [the
p]laintiff’s state-law claim is [the d]efendant’s alleged anti-union conduct, firing [the

12
p]laintiff for his pro-union history and comments. The public policy he relies on to
support his claim is a purported policy against anti-union activity.” Id. at 1266. As
a result, “the public policy forming the basis of his retaliatory-discharge claim is
exactly the same as the purposes behind the NLRA—to prevent anti-union actions by
employers.” Id. Therefore, the court held that “[the d]efendant’s action in this case,
firing [the p]laintiff due to his supposed pro-union views, is arguably a violation of
the NLRA and therefore subject to the jurisdiction of the NLRB.” Id.
{17} 	It is well-established that the protections of Sections 7 and 8 of the NLRA only
cover employees. 29 U.S.C. §§ 157-158; see 29 U.S.C. § 152(3) (1978) (defining
“employee”); 29 U.S.C. § 152(11) (defining “supervisor”); see Int’l Longshoremen’s
Ass’n, AFL-CIO v. Davis, 476 U.S. 380, 394-95 (1986) (holding that in order for
NLRA preemption to apply, the claimant must have “arguably” been an employee
covered by the NLRA); Beasley, 416 U.S. at 661-62 (holding that Congress
specifically excluded supervisors from the NLRA’s protections). Plaintiff alleges he
was terminated on suspicion that he was organizing a union. 	Accepting for the
moment that Plaintiff was an employee and not a supervisor under the NLRA, we
agree with the analysis in Dominguez. 	The NLRA prohibits firing employees for
union-organizing activity. 29 U.S.C. §§ 157, 158(a)(4). Thus, assuming Plaintiff’s

13
status as an employee, his claims arguably fall within the purview of the NLRA and
must first be heard by the NLRB.
{18} 	Because supervisors are not protected by the NLRA, their claims are not subject
to Garmon preemption. Plaintiff argues that because his complaint identifies his title
as “produce manager,” he should be considered a supervisor for purposes of the
NLRA and his claims should not be preempted under Garmon. The term, supervisor,
is specifically defined by the NLRA as someone who exercises the “authority . . . 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.” 	29 U.S.C. § 152(11). Plaintiff’s argument
falls short of this definition. Plaintiff never refers to himself as a supervisor in his
complaint. 	The title, “produce manager,” says nothing of Plaintiff’s functional
authority over subordinate personnel, and Plaintiff provides no such information in
his complaint. 	When Plaintiff previously filed a complaint with the NLRB in this
case, he referred to himself specifically as “William Humphreys, an employee.”
These matters of record lead us to seriously question Plaintiff’s alleged status as a
supervisor under the NLRA.
{19} 	Despite such disagreements over Appellant’s authority Dominguez reminds us

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that “[w]here there is an arguable question as to whether an employee is a supervisor
or an employee covered under the NLRA, that question must be submitted initially to
the NLRB for a decision.” 137 F. Supp. 2d at 1267. Nevertheless, even should we
view Plaintiff as a supervisor, his claims are still preempted under Beasley and
Machinists.
E. 	Preemption under Beasley and Machinists
{20} 	In Beasley, the United States Supreme Court granted certiorari to consider
whether state courts could hear claims brought by supervisors terminated for union
activity. 	416 U.S. at 654-55. 	It was undisputed that the plaintiffs qualified as
supervisors under the NLRA, Id. at 656, and as such, the plaintiffs argued the state had
the authority to hear their claims. Id. at 658. The Court disagreed. It analyzed the
NLRA and its amendments in detail and concluded that Congress specifically
removed supervisors from the NLRA and intentionally exposed them to termination
for union activity. 	Id. at 661-62. 	In doing so, the Court held that, “Congress’
dominant purpose . . . was to redress a perceived imbalance in labor-management
relationships that was found to arise from putting supervisors in the position of
serving two masters with opposed interests.” Id. Thus, the states have no jurisdiction
to consider claims of this type made by supervisors because to do so would “flout the

15
national policy against compulsion upon employers . . . to treat supervisors as
employees.” Id. at 662.
{21} 	The Court decided Machinists two years later. 	427 U.S. at 132. 	The Court
observed that certain state involvement in 	labor 	regulation was nevertheless
preempted even though it fell outside the NLRA. Id. at 140. 	Such involvement is
preempted when Congress has expressed an intent “that the conduct involved be
unregulated because [it should] be controlled by the free play of economic forces.”
Id. (internal quotation marks and citation omitted). In order to balance the parry and
thrust of union-management negotiations, Congress has armed each with certain
“weapons” to aid in the collective bargaining process. Id. at 147-48. Labor is no less
powerful than management in this regard. 	Id. 	Thus, where Congress specifically
leaves certain practices unregulated, states “may not prohibit [their use] or add to an
employer’s federal legal obligations in collective bargaining.” 	Id. at 147 (internal
quotation marks omitted).
{22} 	So, if Plaintiff was a supervisor, the holdings of Beasley and Machinists control.
See Bowlen v. ATR Coil Co., Inc., 553 N.E.2d 1262, 1264 (Ind. Ct. App. 1990)
(holding that supervisor’s state law claims were preempted); 190 A.L.R. Fed. 323 §
26 (2003) (discussing preemption of supervisor termination claims). Beasley instructs

16
us that Congress has given employers the authority to terminate supervisors for their
union activities. 416 U.S. at 661-62. Under Machinists, if Congress has expressed
an intent to arm a party with such a weapon, state courts may not confiscate it. 427
U.S. at 147-51. Thus, assuming Plaintiff was a supervisor, his state law claims are
preempted by the authority of the NLRB.
F. 	Severability
{23} 	Finally, we reject Plaintiff’s argument that his claims are severable for purposes
of federal preemption on these facts. 	We agree with the well-established general
principle that some counts in a complaint may be preempted while others may
continue in state court. 	See Garley, 236 F.3d at 1214-15 (affirming dismissal of
claims for breach of contract, breach of duty of good faith and fair dealing, and
defamation because of preemption, but reversing dismissal of claims for alleged civil
conspiracy and retaliation, and intentional infliction of emotional distress). But in this
case, each count of Plaintiff’s complaint grows from one universal core allegation:
Plaintiff was terminated by Defendants on suspicion that he sought to organize a
union among the employees at their grocery store. This allegation remains constant
despite the fact that five individual legal arguments, each relying on unique
authorities, grow out from it. For example, in count one, Plaintiff argues breach of

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contract. 	In count four, he argues wrongful termination. 	If we ask, why are
Defendants guilty of these allegations, the only reasonable conclusion we can reach
is—Defendants are guilty because they terminated Plaintiff on their belief that he
engaged in organizing a union. Such logic applies equally to each count in Plaintiff’s
complaint, and each count implicates the broader concerns of national labor policy.
We therefore hold that all are uniformly precluded.
CONCLUSION
{24} 	We affirm the district court. 	While it is true that Section 301 of the LMRA
poses no obstacle to Plaintiff’s claims, each still fails under either Garmon, Beasley
or Machinists, regardless of whether we consider Plaintiff an employee or a supervisor
under the NLRA.
{25} 	IT IS SO ORDERED.
___________________________________
RODERICK T. KENNEDY, Judge

WE CONCUR:

MICHAEL E. VIGIL, Judge

TIMOTHY L. GARCIA, Judge (Specially concurring)

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GARCIA, Judge (specially concurring).
{26} 	I specially concur to emphasize that Plaintiff’s claims were dismissed under
Rule 1-012(B) without prejudice. Since the district court’s order does not indicate
whether Plaintiff’s claims were dismissed with or without prejudice, we presume that
Plaintiff’s claims were dismissed without prejudice. 	Cruz v. FTS Constr. Inc., 2006-
NMCA-109, ¶ 27, 140 N.M. 284, 142 P.3d 365 (reasoning that where a district court’s
order does not specify whether a dismissal is with or without prejudice, the dismissal
is considered to be without prejudice).
{27} 	As a result of the district court’s dismissal of Plaintiff’s claims without
prejudice, Plaintiff still has a right to refile his state law claims if he can overcome
issues regarding whether the NLRA preempts his state law claims and any statute of
limitations issues. I agree with the majority that since the disputed activity is arguably
subject to Section 7 or 8 of the NLRA, and there is an arguable question regarding
whether Plaintiff is an employee covered under the NLRA, the proper forum to
initially address those issues is before the NLRB. Majority Opinion, ¶¶ 16-19. As a
result, the district court’s dismissal of Plaintiff’s claims without prejudice was
appropriate. 	See Dominguez, 137 F. Supp. 2d at 1267 (concluding that where the
plaintiff was arguably covered by provisions of the NLRA and his state law claim
arguably fell within the core purposes of the NLRA, dismissal was appropriate
because the state law claim was preempted by the NLRA).

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{28} 	As the majority recognizes, if a disputed activity “is arguably subject to Section
7 or 8 of the NLRA, the States as well as the federal courts must defer to the exclusive
[jurisdiction] of the NLRB if the danger of state interference with national policy is
to be averted.” Majority Opinion, ¶ 14; Weise, 2008-NMCA-121, ¶ 8. The United
States Supreme Court has clarified that the proper procedure for a state court to
determine whether Section 7 or 8 of the NLRA preempts a state law claim is as
follows: 	“[A] court first must decide whether there is an arguable case for
[preemption]; if there is, it must defer to the [NLRB], and only if the [NLRB] decides
that the conduct is not protected or prohibited may the court entertain the litigation.”
Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 397 (1986). 	Until the NLRB
makes its initial determination of whether Plaintiff’s activity is actually governed by
Section 7 or 8 of the NLRA, it is uncertain whether the NRLA preempts any future
state law claims by Plaintiff.
{29} 	As a result, I agree that since there is an arguable case for preemption, the
NLRB has exclusive initial jurisdiction to determine whether the disputed activity is
subject to the NLRA. However, as Davis clarifies, a state court’s initial determination
that the NLRA arguably preempts state law does not necessarily preclude all future
state law claims. Instead, if the NLRB determines that the conduct is not protected or
prohibited under the NLRA, then a state court may entertain the litigation under the

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following circumstances: “(1) if the conduct in question is only a peripheral concern
of the NLRA, or (2) if the state law claims touch interests so deeply rooted in local
feeling and responsibility that, in the absence of compelling congressional direction,
[a court] could not infer that Congress had deprived the States of the power to act.”
Weise, 2008-NMCA-121, ¶ 9 (internal quotation marks and citations omitted).
{30} 	I concur with the ultimate result in this case and the dismissal of Plaintiff”s
claims without prejudice.
__________________________________
TIMOTHY L. GARCIA, Judge