Retail Property Trust v. United Brotherhood of Carpenters & Joiners of America

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

THE RETAIL PROPERTY TRUST, a No. 12-56427
Massachusetts business trust,
Plaintiff-Appellant, D.C. No.
8:10-cv-01605-
v. CJC-AJW

UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF OPINION
AMERICA; CARPENTERS LOCAL
UNION NO. 803; JAMES FLORES, an
individual,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding

Argued and Submitted
November 8, 2013—Pasadena, California

Filed September 23, 2014

Before: Ronald M. Gould and Jay S. Bybee, Circuit Judges,
and Edward M. Chen, District Judge.*

Opinion by Judge Bybee

*
The Honorable Edward M. Chen, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
2 RETAIL PROP. TRUST V. UBCJA

SUMMARY**

Labor Law

Reversing the district court’s grant of a motion to dismiss
state-law claims and a motion for judgment on the pleadings,
and affirming the dismissal of a federal claim, the panel held
that § 303 of the Labor Management Relations Act did not
preempt state-law claims for trespass and private nuisance
related to union activity that may also have constituted
secondary boycott activity.

Disagreeing with the Seventh Circuit, the panel held that
federal law does not so thoroughly occupy the field that it
always preempts such claims. The panel held that the LMRA
did not conflict with the plaintiff mall owner’s trespass and
nuisance claims because the claims touched interests deeply
rooted in local feeling and responsibility, and the plaintiff
sought only to enforce time, place, and manner restrictions
against union protesters. The panel remanded the case to the
district court for consideration of the state-law claims.

COUNSEL

Stacey McKee Knight (argued) and Pamela Tsao, Katten
Muchin Rosenman LLP, Los Angeles, California; Robert T.
Smith, Katten Muchin Rosenman LLP, Washington, D.C., for
Plaintiff-Appellant.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 RETAIL PROP. TRUST V. UBCJA 3

Yuliya S. Mirzoyan (argued) and Daniel M. Shanley,
DeCarlo & Shanley, a Professional Corporation, Los Angeles,
California, for Defendants-Appellees.

OPINION

BYBEE, Circuit Judge:

In this case we must decide whether § 303 of the Labor
Management Relations Act (“LMRA”), codified at 29 U.S.C.
§ 187, preempts state-law claims for trespass and private
nuisance related to union conduct that may also constitute
secondary boycott activity. Following the reasoning of Local
20, Teamsters, Chauffeurs & Helpers Union v. Morton,
377 U.S. 252 (1964), Lodge 76, Int’l Ass’n of Machinists and
Aerospace Workers, AFL-CIO v. Wis. Empl. Relations
Comm’n, 427 U.S. 132 (1976), and Sears, Roebuck & Co. v.
San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180
(1978), we hold that federal law does not so thoroughly
occupy the field that it always preempts such claims, nor does
it conflict with the state law claims presented here. Where, as
in this case, state claims of trespass and nuisance “touch[]
interests deeply rooted in local feeling and responsibility,”
Belknap, Inc. v. Hale, 463 U.S. 491, 498 (1983), and the
plaintiff seeks only to enforce time, place, and manner
restrictions against union protesters, “we are unwilling to
presume that Congress intended . . . to deprive the California
courts of jurisdiction to entertain [the nuisance and] trespass
action[s].” Sears, 436 U.S. at 207. We reverse the district
court’s grant of the defendants’ motion to dismiss and remand
the case to the district court for consideration of the state-law
claims of trespass and nuisance against the defendants.
4 RETAIL PROP. TRUST V. UBCJA

I. FACTS

The Plaintiff-Appellant, Retail Property Trust (“RPT” or
“the Mall”), owns Brea Mall in Brea, California. The
Defendants-Appellees are United Brotherhood of Carpenters
and Joiners of America Local 803; the Union’s secretary-
treasurer, James Flores; and fictitious defendants
(collectively, “the Union”). According to the Mall’s
allegations, in 2010, one of the Mall’s tenants, Urban
Outfitters, contracted with non-union subcontractors to
renovate the store in advance of its opening. Flores sent a
letter to the Mall advising it of the Union’s plans to pursue a
labor dispute “under federal labor laws and the First
Amendment of the United States Constitution, the California
Constitution and California Labor Law.” The Union advised
that it would “choose the terms [it] deem[ed] appropriate in
conveying [its] message, without censure” and that it would
“publicize[]” its concerns “at the premises of everyone
involved in the labor dispute to inform the public of the
presence of a ‘RAT’ contractor.”

The Mall is privately owned, but it has a policy for
accommodating speech-related activities on its property. It
developed its time, place, and manner restrictions to abide by
the California Constitution’s protection of “speech and
petitioning, reasonably exercised, in shopping centers even
when the centers are privately owned.” Robins v. Pruneyard
Shopping Ctr., 592 P.2d 341, 347 (Cal. 1979), aff’d sub nom.
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980); see
also Calif. Const. art. I, § 2(a) (“Every person may freely
speak, write and publish his or her sentiments on all
subjects.”). The Mall generally requires petitioners,
solicitors, and protestors to fill out an application in advance,
to agree to remain within one of two designated common
 RETAIL PROP. TRUST V. UBCJA 5

areas, and not to create noise of such volume as to impinge on
the peace of the general public, obstruct pedestrian traffic, or
damage or destroy any property. It also specifically prohibits
“physical force, obscene language or gestures, or racial,
religious or ethnic slurs,” physical or verbal threats, or “any
disturbance which is disruptive to the Center’s commercial
function.”

The Mall’s rules for public use of common areas
specifically recognize “Qualified Labor Activity,” such as
“picketing and/or informational leafletting,” as a special class
of protected activity. Unlike other members of the public,
labor organizations and their representatives may choose
between conducting their activities in a designated area or in
an alternate area chosen by the Mall “proximately located to
the targeted employer or business.” The Mall reserves the
right to prohibit labor activity from areas that would threaten
the personal safety of Mall patrons.

The Mall alleged that, beginning on October 1, 2010, and
continuing on several occasions that month, dozens of union
members violated these rules when they, having not filled out
an application:

came onto the Mall’s privately owned
common areas in front of the Urban Outfitters
construction site and started a disruptive
protest by marching in a circle, yelling,
chanting loudly in unison, blowing whistles,
hitting and kicking the construction barricade
(which created a large hole in the barricade),
and hitting their picket signs against the Mall
railings, which created an intimidating and
disquieting environment that interfered with
6 RETAIL PROP. TRUST V. UBCJA

the Mall’s and its tenants’ normal operation of
business.

The Mall alleged that union members also cat-called and
made sexually provocative gestures toward female patrons
and, at one point, “moved their protesting activities in front
of two other tenant stores, neither of which had any
relationship to Urban Outfitters or its contractor.” Flores told
the Mall manager that the Union would continue to picket and
protest “until such time that the Mall either forced Urban
Outfitters to stop their construction work or until the Mall
closed down the [Urban Outfitters] construction.” At no
point during these protests was Urban Outfitters open for
business. The Mall claimed it “received a number of
complaints from its tenants, to whom it has a contractual
obligation to provide a quiet and peaceful environment to
conduct business.”

The Mall filed its complaint in California Superior Court,
alleging state-law claims for trespass and nuisance and
seeking declaratory and injunctive relief. The Union
immediately removed the case to federal court on the ground
that the Mall had alleged the equivalent of unlawful
secondary boycott activity in violation of § 303 of the
LMRA. As a result, the Union argued, the state claims were
not only preempted by federal law, but the Mall had also
effectively stated a federal cause of action. See Morton,
377 U.S. at 261; Ethridge v. Harbor House Rest., 861 F.2d
1389, 1400 n.7 (9th Cir. 1988).

Section 303 prohibits, through cross-reference to
29 U.S.C. § 158, labor organizations or their agents from
“threaten[ing], coerc[ing], or restrain[ing] any person
engaged in commerce or in an industry affecting commerce,
 RETAIL PROP. TRUST V. UBCJA 7

where . . . an object thereof is . . . forcing or requiring any
person to . . . cease doing business with any other person.”
29 U.S.C. § 158(b)(4)(ii)(B). These are known as “secondary
boycott activities,” since they are directed at parties who are
not involved in the labor dispute, as opposed to primary
boycott activities in which a union pressures an employer to
change its behavior. See Nat’l Woodwork Mfrs. Ass’n v.
NLRB, 386 U.S. 612, 644–45 (1967). “The gravamen of a
secondary boycott is that its sanctions bear, not upon the
employer who alone is a party to the dispute, but upon some
third party who has no concern in it. Its aim is to compel him
to stop business with the employer in the hope that this will
induce the employer to give in to his employees’ demands.”
Id. at 627 n.16 (quoting Int’l Bhd. of Elec. Workers, Local
501 v. NLRB, 181 F.2d 34, 37 (2d Cir. 1950) (Hand., J.)); see
also Chipman Freight Servs. v. NLRB, 843 F.2d 1224, 1227
(9th Cir. 1988).

In December 2010, the district court denied the Mall’s
request to remand the case to state court. The district court
observed that “the sum of RPT’s present allegations assert
that Defendants have violated § 8(b)(4)(B) [29 U.S.C.
§ 158(b)(4)(B)] . . . . Specifically, RPT has alleged that
Defendants’ protests have been loud, destructive, and
disruptive, causing RPT and its tenants to suffer damages.”
It noted that “RPT is itself a target of Defendants’ pressure,”
since the Union threatened to force the Mall to close the
Urban Outfitters construction if it did not prevent Urban
Outfitters from hiring non-union subcontractors. The district
court acknowledged that a defendant ordinarily cannot
remove a case based on the assertion of a federal defense, but
found there was a “complete preemption” exception where
“any claim purportedly based on that preempted state law is
considered, from its inception, a federal claim, and therefore
8 RETAIL PROP. TRUST V. UBCJA

arises under federal law.” Balcorta v. Twentieth Century-Fox
Film Corp., 208 F.3d 1102, 1107 (9th Cir. 2000); see also
Smart v. Local 702 Intl’ Bhd of Elec. Workers, 562 F.3d 798,
808 (7th Cir. 2009). The court concluded that “complete
preemption [ ] applies,” in this case, denied the motion to
remand, and exercised supplemental jurisdiction over the
Mall’s trespass and private nuisance claims.

The district court gave the Mall leave to file an amended
complaint, “in order to make clear that RPT did not intend to
pursue any claim against Defendants beyond those related to
Defendants’ alleged violations of RPT’s time, place and
manner restrictions.” The Mall filed its First Amended
Complaint in January 2011 and renewed its motion to remand
the case to state court. In the district court’s March 2011
order on the renewed motion to remand, the court
acknowledged that the Mall “eliminated many of its factual
allegations regarding threats and other intimidating behavior
by Defendants,” but it held that the Mall still alleged that it
“suffered injury and harm to its business interests and that the
demonstrations obstructed Plaintiff and its tenants free use of
its private property.” The district court held that, because the
Mall’s “time, place and manner restrictions prohibit the same
conduct that is prohibited under 29 U.S.C. § 158(b)(4) . . .,
RPT’s claims to enforce its time, place and manner rules are
still completely pre-empted by the federal statute.”

In July 2011, the Mall filed a Second Amended
Complaint (“SAC”). It again included claims for trespass,
private nuisance, and injunctive relief for unlawful acts by a
union pursuant to California Labor Code § 1138.1, which
specifies the requirements for a court to issue an injunction
“in any case involving or growing out of a labor dispute.”
 RETAIL PROP. TRUST V. UBCJA 9

Cal. Labor Code § 1138.1(a).1 The SAC also included two
important new paragraphs in the section labeled “Parties”:

9. Plaintiff brings this action pursuant to
Section 303 of the Labor Management
Relations Act (29 U.S.C.A. § 187), hereinafter
referred to as the LMRA, to recover damages
for an illegal secondary boycott engaged in by
the Defendants herein, together with the cost
of this action. Plaintiff further brings this
action pursuant to state-based property laws
regarding the unapproved use and trespass on
its private property.

...

11. Jurisdiction is conferred on this court by
the provisions of Section 303 and by
28 U.S.C.A. § 1331. The Court has pendent
jurisdiction over Plaintiff’s state-based
property claims.

The Mall incorporated these paragraphs by reference into
each state cause of action.

In September 2011, the district court granted in part and
denied in part the Union’s Rule 12(b)(6) motion to dismiss all
of the Mall’s claims. The court granted the motion with

1
The third cause of action, which invoked § 1138.1, essentially restated
the alleged trespassory and nuisance-causing activities of the Union and
requested an injunction since the Mall “has no adequate remedy at law
because monetary damage will not prevent Defendants from” trespassing
and causing a nuisance.
10 RETAIL PROP. TRUST V. UBCJA

respect to the Mall’s claims for state-law trespass, private
nuisance, and injunctive relief pursuant to of California Labor
Code § 1138.1. It denied the motion to dismiss with respect
to the cause of action added in Paragraph 9 of the SAC and
initially brought pursuant to § 303. It again concluded,
quoting Smart, 562 F.3d at 808, that § 303 of the LMRA
“‘completely preempts state-law claims related to secondary
boycott activities described in § 158(b)(4)’ and ‘provides an
exclusive federal cause of action for the redress of such
illegal activity.’”

At that point, the only claim remaining in the suit was the
§ 303 claim. In January 2012 the district court dismissed the
claim against Flores because a § 303 claim cannot be brought
against a union member in his individual capacity. See
Broadmoor Homes, N. v. Cement Masons, Local 594, 507 F.
Supp. 55, 57 (N.D. Cal. 1981). Finally, on July 12, 2012, the
district court granted a motion by the Mall to dismiss
voluntarily the remaining § 303 claim pursuant to Federal
Rule of Civil Procedure 41(a)(2).

On July 31, 2012, the Mall appealed the July 12, 2012
order dismissing the action with prejudice. It “directed” its
notice of appeal at all of the district court’s previous orders
and did not otherwise specify which claims it was appealing.
However, in its briefing before us, the Mall clarified that the
sole issue presented is whether the district court erred in
holding that “a state-law action for trespass and private
nuisance is preempted by § 303 of LMRA simply because the
invasion of property happened to involve a secondary boycott
by a union.” It argues that each of the district court’s orders
stemmed from a misapprehension of this issue and asks that
the judgment of the district court be vacated in its entirety.
 RETAIL PROP. TRUST V. UBCJA 11

The Mall also asks that the district court be instructed to
remand the case to state court.

II. STANDARD OF REVIEW

We review de novo the district court’s dismissal for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Stone v. Travelers Corp., 58 F.3d 434, 436–37 (9th
Cir. 1995). In reviewing a motion to dismiss pursuant to Rule
12(b)(6), we must accept as true all factual allegations in the
complaint and draw all reasonable inferences in favor of the
nonmoving party. Silvas v. E*Trade Mortg. Corp., 514 F.3d
1001, 1003 (9th Cir. 2008). To survive such a motion, a
complaint must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). We also review the removal of the case
from state court to federal court de novo. Emrich v. Touche
Ross & Co., 846 F.2d 1190, 1194 (9th Cir. 1988).

III. ANALYSIS

The Mall’s SAC alleged three causes of action: trespass,
private nuisance, and injunctive relief for unlawful acts by a
union pursuant to California Labor Code § 1138.1. The
district court held that all three causes of action were
“completely pre-empt[ed]” by § 303, because those state
claims were “related to secondary boycott activities described
12 RETAIL PROP. TRUST V. UBCJA

in section 158(b)(4)” and made actionable by § 303.2 Section
303 provides:

(a) It shall be unlawful . . . for any labor
organization to engage in any activity or
conduct defined as an unfair labor practice in
section 158(b)(4) of this title.

(b) Whoever shall be injured in his business or
property by reason o[f] any violation of
subsection (a) . . . may sue therefor in any
district court of the United States . . . or in any
other court having jurisdiction of the parties.

29 U.S.C. § 187.3

2
Alternatively, the district court treated the three state causes of action
as though they were components of a federal cause of action brought
under § 303. In the background section of the SAC (and for the first time
in the litigation), the Mall stated that it was bringing its action pursuant to
§ 303 for “an illegal secondary boycott.” It recited § 303 as a basis for the
exercise of federal jurisdiction under 28 U.S.C. § 1331, but it did not set
forth a separate cause of action under § 303. Once the district court
dismissed the Mall’s state-law causes of action as state law claims, the
Mall elected to dismiss voluntarily its § 303 claim and pursue this appeal.
We limit our discussion to the issue decided by the district court and
appealed by the Mall: whether the Mall’s state-law claims of trespass and
nuisance are preempted by § 303.
3
We note that § 303 creates a federal cause of action and provides for
jurisdiction. That section provides that a cause of action may be brought
in any court, federal or state, that has personal jurisdiction over the parties.
The question we address is whether § 303 is the exclusive remedy for
conduct that may arise out of certain unfair labor practices defined in § 8
of the National Labor Relations Act. Section 303 does not provide for
exclusive jurisdiction.
 RETAIL PROP. TRUST V. UBCJA 13

We proceed in three steps. First, to sharpen the issues
before us, we address the difference between “complete”
preemption and defensive preemption, often referred to as
conflict or field preemption. Second, we discuss preemption
under the National Labor Relations Act (NLRA), starting
with Garmon4 preemption and proceeding to Machinists
preemption under § 303. Third, we apply these preemption
principles to this case, covering both field preemption and
conflict preemption.

A. “Complete” Preemption v. Defensive Preemption

This case comes to us in a somewhat unusual posture, and
understanding the posture is critical to understanding the
precise nature of the issue before us. The Mall first filed this
case in state court, and its complaint contained only state
causes of action. The Union removed the case to federal
court on the basis of 28 U.S.C. § 1331, claiming that the
Mall’s action arose under federal law. But the Union could
only remove the action if the case could have been filed
originally in federal court. 28 U.S.C. § 1441(a). Because the
Mall’s complaint had only state-law claims and the parties
were not diverse, the Mall could not have filed its suit in
federal court in the first instance. Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987).

Even if the Union anticipated raising preemption as a
federal defense, that would not have been grounds for
removal. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63
(1987). “The presence or absence of federal-question
jurisdiction is governed by the ‘well-pleaded complaint rule,’
which provides that federal jurisdiction exists only when a

4
San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959).
14 RETAIL PROP. TRUST V. UBCJA

federal question is presented on the face of the plaintiff’s
properly pleaded complaint.” Caterpillar, 482 U.S. at 392.
“As a general rule, absent diversity jurisdiction, a case will
not be removable if the complaint does not affirmatively
allege a federal claim.” Beneficial Nat’l Bank v. Anderson,
539 U.S. 1, 6 (2003). The well-pleaded complaint rule means
that “a case may not be removed to federal court on the basis
of a federal defense, including the defense of pre-emption,
even if the defense is anticipated in the plaintiff’s complaint,
and even if both parties concede that the federal defense is the
only question truly at issue.” Caterpillar, 482 U.S. at 393.

Under these principles, the district court here would have
been obligated to decline jurisdiction over the Mall’s
complaint and remand to state court. After remand, the
Union would have been free to assert its defense of federal
preemption and ask the state court to dismiss the Mall’s
claims. The state court’s judgment on any federal preemption
defense then would have been reviewable by California
appellate courts and, ultimately, by the U.S. Supreme Court.
Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S.
Cal., 463 U.S. 1, 12 n.12 (1983).

The Supreme Court has recognized, however, an
“independent corollary to the well-pleaded complaint rule
known as the complete pre-emption doctrine.” Caterpillar,
482 U.S. at 393 (internal quotation marks and citation
omitted). That doctrine posits that there are some federal
statutes that have such “extraordinary pre-emptive power”
that they “convert[] an ordinary state common law complaint
into one stating a federal claim for purposes of the well-
pleaded complaint rule.” Metro. Life Ins., 481 U.S. at 65.
“Once an area of state law has been completely pre-empted,
any claim purportedly based on that pre-empted state law is
 RETAIL PROP. TRUST V. UBCJA 15

considered, from its inception, a federal claim, and therefore
arises under federal law.” Caterpillar, 482 U.S. at 393.
Accordingly, “[w]hen a plaintiff raises such a completely
preempted state-law claim in his complaint, a court is
obligated to construe the complaint as raising a federal claim
and therefore ‘arising under’ federal law.” Sullivan v. Am.
Airlines, Inc., 424 F.3d 267, 272 (2d Cir. 2005). We have
commented that

[c]omplete preemption is really a
jurisdictional rather than a preemption
doctrine, as it confers exclusive federal
jurisdiction in certain instances where
Congress intended the scope of federal law to
be so broad as to entirely replace any state-
law claim. Complete preemption is a limited
doctrine that applies only where a federal
statutory scheme is so comprehensive that it
entirely supplants state law causes of action.

Dennis v. Hart, 724 F.3d 1249, 1254 (9th Cir. 2013) (internal
quotation marks and citations omitted). We have referred to
complete preemption as “super preemption,” Associated
Builders & Contractors, Inc. v. Local 302 Int’l Bhd. of Elec.
Workers, 109 F.3d 1353, 1356 (9th Cir. 1997), and have said
that its occurrence is “rare.” ARCO Envtl. Remediation, LLC
v. Mont. Dep’t of Health & Envtl. Quality, 213 F.3d 1108,
1114 (9th Cir. 2000). Indeed, the Supreme Court has
recognized only three instances of “complete jurisdiction.”5

5
The three are: (1) § 301 of the LMRA, 29 U.S.C. § 185, Avco Corp. v.
Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 558–62
(1968); (2) § 502(a) of the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1132(a), Metro. Life Ins., 481 U.S. at 65–67; and (3)
16 RETAIL PROP. TRUST V. UBCJA

The Union argued, and the district court agreed, that
§ 303 was another rare instance of “complete pre-emption,”
and that the Union could therefore remove the case to federal
court. The district court relied on the decision of the Seventh
Circuit in Smart, 562 F.3d at 798, in which that court held
that § 303 “completely pre-empt[ed]” state antitrust law
claims and authorized federal jurisdiction after removal. Id.
at 808. (We discuss Smart in much greater detail below.)

Although the district court’s reference to “complete pre-
emption” of the state law claims in its ruling on the motion to
dismiss was understandable in the context of the case, it was
error. Once the district court established its subject matter
jurisdiction over the SAC, the Union’s assertion of
preemption was a defense, not a grounds for removal. See
Martin Gen. Hosp. v. Modesto & Empire Traction Co.,
581 F.3d 941, 944–46 (9th Cir. 2009). “Complete
preemption” is a doctrine applicable to removal jurisdiction
only; it is not a doctrine of defensive preemption, although
there has been more than a little confusion in our cases and in
the cases generally. It is going to be important for us to keep
our terms straight.

In general, there are three forms of defensive preemption:
express preemption, field preemption, and conflict
preemption. These doctrines are well-established, and their
contours are well-known to us—even if they are difficult to
apply. See Arizona v. United States, 132 S. Ct. 2492,
2500–01 (2012); Cipollone v. Liggett Grp., Inc., 505 U.S.
504, 516 (1992). The relationship between “complete
preemption” and defensive preemption is not entirely clear,

§§ 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85, 86, Beneficial
Nat’l Bank, 539 U.S. at 7–11.
 RETAIL PROP. TRUST V. UBCJA 17

although we agree that “[t]he complete-preemption doctrine
must be distinguished from ordinary preemption.” Sullivan,
424 F.3d at 272; see also Balcorta, 208 F.3d at 1107 n.7 (“In
spite of its title, the ‘complete preemption’ doctrine is
actually a doctrine of jurisdiction and is not to be confused
with ordinary preemption doctrine (although it is related to
preemption law).”); SPGGC, LLC v. Ayotte, 488 F.3d 525,
530 n.4 (1st Cir. 2007) (referring to complete preemption as
“[a] fourth species of preemption”). And, because complete
preemption is rare, “[m]any federal statutes—far more than
support complete preemption—will support a defendant’s
argument that because federal law preempts state law, the
defendant cannot be held liable under state law.” Sullivan,
424 F.3d at 272–73. We have occasionally—and always
casually—equated complete preemption with field
preemption. See, e.g., In re NOS Commc’ns, 495 F.3d 1052,
1058 (9th Cir. 2007) (referring to “complete field
preemption”); Ting v. AT&T, 319 F.3d 1126, 1135 (9th Cir.
2003) (“[F]ederal law can preempt and displace state law
through . . . field preemption (sometimes referred to as
complete preemption).”); ARCO Envtl. Remediation, 213
F.3d at 1114 (“Preempted state law claims may be removed
to federal court only in the rare instances where Congress has
chosen to regulate the entire field.”). The confusion is not
peculiar to us. See, e.g., Johnson v. MFA Petroleum Co., 701
F.3d 243, 254 (8th Cir. 2012) (Beam, J., dissenting)
(“Complete preemption (sometimes labeled field
preemption). . . .”); Boomer v. AT&T Corp., 309 F.3d 404,
417 (7th Cir. 2002) (“A federal law may preempt a state law
expressly, impliedly through the doctrine of conflict
preemption, or through the doctrine of field (also known as
complete) preemption.”); Lehmann v. Brown, 230 F.3d 916,
919 (7th Cir. 2000) (“‘[C]omplete preemption’ is a misnomer,
having nothing to do with preemption and everything to do
18 RETAIL PROP. TRUST V. UBCJA

with federal occupation of a field.”). It may well be that
complete preemption is a species of field preemption; they
bear a number of similarities. But it is also clear that field
preemption and complete preemption are not co-extensive.
For now, it is enough to say that the doctrines serve distinct
purposes and should be kept clear and separate in our minds.
See Sullivan, 424 F.3d at 273 n.7 (“It is true that the defense
of field preemption and the doctrine of complete preemption
both rest on the breadth, in some crude sense, of a federal
statute’s preemptive force. The two types of preemption are,
however, better considered distinct.”).

Once the district court acquired federal question
jurisdiction under § 1331—not because the Union removed
the case under a complete preemption theory, but because the
Mall pled federal question jurisdiction in its SAC—the only
preemption question remaining in this case is one of
defensive preemption, not complete preemption.6 The

6
The question whether the district court erred in denying the Mall’s
motions to remand is thus moot, as the Mall’s assertion of federal
jurisdiction in the SAC conferred jurisdiction upon the district court and
hence upon us.

Had the district court coerced the Mall into amending its complaint
in this way, we might conclude differently, cf. O’Halloran v. Univ. of
Wash., 856 F.2d 1375, 1378 (9th Cir. 1988), but no such coercion
occurred here. After the denial of either of its motions to remand, the
Mall could have brought an interlocutory appeal under 28 U.S.C.
§ 1292(b) or asked the district court to dismiss its claims to allow it to
pursue a direct appeal under 28 U.S.C. § 1291. At the very least, when it
filed its amended complaint, the Mall might have indicated to the district
court that it was doing so solely in order to comply with the district court’s
order and asked the court to note its objections to that order. We hold the
Mall, which was represented by sophisticated counsel, to the
consequences of its choice to “thr[o]w in the towel” rather than take any
 RETAIL PROP. TRUST V. UBCJA 19

Union’s only argument for dismissal is that the Mall’s state
claims are preempted by the LMRA, and that means that we
must consider whether Congress expressly or impliedly
preempted those claims.

We can dispense with any claim of express preemption:
The Supreme Court itself has observed that “[t]he NLRA
contains no express pre-emption provision.” Bldg. & Constr.
Trades Council v. Associated Builders & Contractors,
507 U.S. 218, 224 (1993). We thus turn to the question of
implied preemption, “start[ing] with the basic assumption that
Congress did not intend to displace state law” unless “it
conflicts with federal law or would frustrate the federal
scheme, or unless [we] discern from the totality of the
circumstances that Congress sought to occupy the field to the
exclusion of the States.” Id. (second alteration in original)
(internal quotation marks and citations omitted). To decide
those questions, we begin with background on the complex
doctrine of preemption of state causes of action by federal
labor law. We then turn to whether the Mall’s state claims

of the aforementioned steps. See Bernstein v. Lind-Waldock & Co.,
738 F.2d 179, 185 (7th Cir. 1984); see also Moffitt v. Residential Funding
Co., LLC, 604 F.3d 156, 159 (4th Cir. 2010); Barbara v. N.Y. Stock Exch.,
Inc., 99 F.3d 49, 56 (2d Cir. 1996).

In any event, moreover, the Mall did not raise any claim of coercion
in its opening brief and has thus waived all argument on this point. See
Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (“We review only
issues which are argued specifically and distinctly in a party’s opening
brief.”).
20 RETAIL PROP. TRUST V. UBCJA

for trespass and nuisance in this case are pre-empted by
§ 303.7

B. Conflict Preemption and Field Preemption Under
Federal Labor Law

The NLRA, later modified by the LMRA, “marked a
fundamental change in the Nation’s labor policies” by
recognizing the right of labor to organize and exercise
economic power. Sears, 436 U.S. at 190. It both permits and
prohibits certain conduct by employers and employees.
Section 7 protects the right of employees “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,” 29 U.S.C. § 157, including
the right to conduct pickets and consumer boycotts. See
NLRB v. Calkins, 187 F.3d 1080, 1086–87 (9th Cir. 1999).

Section 8 bars “unfair labor practice[s]” by employers and
by labor organizations. 29 U.S.C. §§ 158(a), 158(b). Section
8 makes it illegal “for an employer to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed
in section [7 of the NLRA, 29 U.S.C. § 157].” Id. § 158(a)(1).
At the same time, it provides for a federal private cause of
action for claims based on the conduct of labor organizations
or their agents that constitute unfair labor practices, including
secondary boycott activity. See id. § 158(b)(4)(B).

7
The Mall makes no defense of the district court’s dismissal of its claim
for an injunction pursuant to California Labor Code § 1138.1, which itself
largely reiterated the trespass and nuisance claims. The claim has been
waived on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999).
 RETAIL PROP. TRUST V. UBCJA 21

Courts have addressed federal labor law preemption of
state provisions largely on a case-by-case basis, and they have
not always adhered to the conventional categories of conflict
and field preemption. The United States Supreme Court
initially took the position that “Congress did not exhaust the
full sweep of legislative power over industrial relations,” and
thus found that the LMRA “leaves much to the states, though
Congress has refrained from telling us how much.” Garner v.
Teamsters, Chauffeurs & Helpers Local Union No. 776, 346
U.S. 485, 488 (1953). It later observed that “Congress largely
displaced state regulation of industrial relations.” Wis. Dep’t
of Indus., Labor & Human Relations v. Gould, Inc., 475 U.S.
282, 286 (1986).

The contrast between the Court’s pronouncements in
Garner and Gould may not be as great as it appears at first.
The Court has been more apt to find preemption when it is
clear that the states are attempting to regulate the same
conduct covered by federal law—that is, when states have
promulgated their own labor codes. As Gould states, federal
labor law has “largely displaced state regulation of industrial
relations.” Id. (emphasis added). Nevertheless, even with
respect to state regulation of labor relations, “Congress
developed the framework for self-organization and collective
bargaining of the NLRA within the larger body of state law
promoting public health and safety.” Metro. Life Ins.,
471 U.S. at 756. Accordingly, “[f]ederal labor law in this
sense is interstitial, supplementing state law where
compatible, and supplanting it only when it prevents the
accomplishment of the purposes of the federal Act.” Id. As
we will see, the preemptive effect of the NLRA is less clear
when state laws of general applicability affect labor relations,
directly or obliquely. See Sears, 436 U.S. at 197 n.27; see
also Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88,
22 RETAIL PROP. TRUST V. UBCJA

104–08 (1992). The NLRA did not displace those areas
where the “States traditionally have had great latitude under
their police powers to legislate as ‘to the protection of the
lives, limbs, health, comfort, and quiet of all persons.’”
Metro. Life Ins., 471 U.S. at 756 (quoting Slaughter-House
Cases, 83 U.S. (16 Wall.) 36, 62 (1872) (quotation marks and
citation omitted)).

Within the context of the NLRA, courts have described
two special kinds of defensive preemption. See Chamber of
Commerce v. Brown, 554 U.S. 60, 65 (2008). “The first,
known as Garmon pre-emption, ‘is intended to preclude state
interference with the National Labor Relations Board’s
interpretation and active enforcement of the “integrated
scheme of regulation” established by the NLRA.’” Id.
(quoting Golden State Transit Corp. v. Los Angeles, 475 U.S.
608, 613 (1986)) (citation omitted). The second type of
preemption, “known as Machinists pre-emption, forbids both
the [NLRB] and States to regulate conduct that Congress
intended ‘be unregulated because left ‘to be controlled by the
free play of economic forces.’” Id. (quoting Machinists,
427 U.S. at 140) (internal quotation marks and citations
omitted).

In order to decide this case, we first review the distinct
NLRA preemption principles of Garmon. The parties
concede that Garmon itself is not in play here, but the
principles set out in Garmon—and applied in Sears—are
essential to understanding Morton and Machinists, the § 303
cases articulating the preemption doctrine we apply in this
case. We first discuss Garmon and Sears and then turn to
Morton and Machinists.
 RETAIL PROP. TRUST V. UBCJA 23

1. Garmon and Sears

Garmon preemption deals specifically with when a labor
matter must be brought before the NLRB, a complicated
doctrine known as primary jurisdiction. See Golden State
Transit Corp., 475 U.S. at 613 (“The Garmon rule is intended
to preclude state interference with the National Labor
Relations Board’s interpretation and active enforcement of
the integrated scheme of regulation established by the
NLRA.” (internal quotation marks and citation omitted));
Associated Builders & Contractors of S. Cal., Inc. v. Nunn,
356 F.3d 979, 987 (9th Cir. 2004). In this case, the Mall had
“no right to invoke [the Board’s primary] jurisdiction,” and
the Union—the party that could have brought the matter
before the Board—failed to do so. Accordingly, Garmon
preemption is not at issue here. Sears, 436 U.S. at 207. But
Garmon’s principles of labor law preemption underlie
Morton and its progeny, which, as discussed below, are
important to our analysis in this case.

In Garmon, a union picketed an employer to force the
employer to sign a union-shop contract. Garmon, 359 U.S. at
237. The employer first sought to bring the matter before the
NLRB, but the Board declined jurisdiction. Id. at 238. The
employer then filed suit in California Superior Court, arguing
that the union had committed a tort based on a state unfair
labor practice law. The California court awarded damages to
the employer, but the U.S. Supreme Court reversed. Id. The
Court acknowledged that it was unclear whether the union’s
conduct was protected under § 7 of the NLRA or prohibited
under § 8. Id. at 245. The Court focused on whether the
NLRB had primary jurisdiction to make that determination:
“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
24 RETAIL PROP. TRUST V. UBCJA

exclusive competence of the [NLRB] if the danger of state
interference with National policy is to be averted.” Id. at 245.
After Garmon, the focus of the NLRB’s primary jurisdiction
is the potential for conflict with federal policy. Id. at 246
(“The governing consideration is that to allow the States to
control activities that are potentially subject to federal
regulation involves too great a danger of conflict with
national labor policy.”).

Although Garmon’s “arguably subject to” language
suggested a broad preemption doctrine, the Court also
reaffirmed that there were limits on federal preemption of
state laws of general applicability. The Court emphasized
two considerations, both rooted in federalism, that bear on
those limits. First, in light of “the presuppositions of our
embracing federal system, including the principle of diffusion
of power not as a matter of doctrinaire localism but as a
promoter of democracy,” the NLRA did not “withdraw[]
from the States [ ] power to regulate where the activity
regulated was a merely peripheral concern of the Labor
Management Relations Act.” Id. at 243. Second, the States
retained power to regulate “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.” Id. at 244. Such
local interests included “violence and imminent threats to
public order,” because “the compelling state interest, in the
scheme of our federalism, in the maintenance of domestic
peace is not overridden in the absence of clearly expressed
congressional direction.” Id. at 247. The Court concluded
there was “no such compelling state interest” present on the
facts of Garmon. Id. at 248.
 RETAIL PROP. TRUST V. UBCJA 25

By contrast, in Sears, 436 U.S. at 180, the Court found
deeply local interests to be at stake, such that Garmon
preemption was inappropriate. The issue before the Court in
Sears was whether the NLRA “deprives a state court of the
power to entertain an action by an employer to enforce state
trespass laws against picketing which is arguably—but not
definitely—prohibited or protected by federal law.” Id. at
182. The case arose when a Sears store brought a state
trespass action against a union after union members—angered
that the store was employing non-union carpenters—refused
to comply with Sears’ demand that the union cease its
picketing activities on its property. Id.

The state trial court granted a preliminary injunction, and
the California Court of Appeal affirmed, concluding “that the
Union’s continuing trespass fell within the longstanding
exception for conduct which touched interests so deeply
rooted in local feeling and responsibility that pre-emption
could not be inferred in the absence of clear evidence of
congressional intent.” Id. at 183 (citing Garmon, 259 U.S. at
236). However, the California Supreme Court reversed,
concluding that since the picketing was both arguably
protected by § 7 of the NLRA and arguably prohibited by § 8,
“state jurisdiction was pre-empted under the Garmon
guidelines.” Id. at 184. The U.S. Supreme Court granted
certiorari, noting that it had until then “not decided whether,
or under what circumstances, a state court has power to
enforce local trespass laws against a union’s peaceful
picketing.” Id.

The Court began with the observation that Sears had
brought only a trespass claim. Sears had asserted “no claim
that the picketing itself violated any state or federal law,” and
the store “sought simply to remove the pickets from its
26 RETAIL PROP. TRUST V. UBCJA

property . . . . Thus, as a matter of state law, the location of
the picketing was illegal but the picketing itself was
unobjectionable.” Id. at 185. The Court had allowed states
“to enforce certain laws of general applicability even though
aspects of the challenged conduct were arguably prohibited
by § 8 of the NLRA,” including laws that fell within
Garmon’s “local feeling and responsibility” exception. Id. at
195 (quoting Garmon, 359 U.S. at 244). It cited examples of
claims that were not preempted by federal law, including:
threats of violence, violence, libel, and intentional infliction
of mental distress. Id. (collecting cases). It contrasted these
cases with state laws, such as antitrust laws, that conflict with
the LMRA when “brought to bear on precisely the same
conduct” that is arguably prohibited by § 8. Id. at 194
(emphasis added) (internal quotation marks and citations
omitted). Reviewing the cases, the Court identified two
relevant “factors which warranted a departure from the
general pre-emption guidelines in the ‘local interest’ cases”:
First, there was “a significant state interest in protecting the
citizen from the challenged conduct,” and second, although
“the challenged conduct occurred in the course of a labor
dispute and an unfair labor practice charge could have been
filed, the exercise of state jurisdiction over the tort claim
entailed little risk of interference with the regulatory
jurisdiction of the Labor Board.” Id. at 196.

In the context of state laws touching on conduct that is
arguably prohibited by the NLRA, the Court reduced these
two factors to a single test: “The critical inquiry, therefore, is
not whether the State is enforcing a law relating specifically
to labor relations or one of general application but whether
the controversy presented to the state court is identical to . . .
or different from . . . that which could have been, but was not,
presented to the Labor Board.” Id. at 197 (emphasis added).
 RETAIL PROP. TRUST V. UBCJA 27

Only if the controversy is identical to a claim that could have
been presented to the Board would a state court’s exercise of
jurisdiction involve “a risk of interference with the unfair
labor practice jurisdiction of the Board.” Id.

The Court concluded that in that case “the controversy
which Sears might have presented to the Labor Board is not
the same as the controversy presented to the state court.” Id.
at 198. If Sears had filed a charge with the NLRB, “the
federal issue would have been whether the picketing had a
recognitional or work-reassignment objective; decision of
that issue would have entailed relatively complex factual and
legal determinations completely unrelated to the simple
question whether a trespass had occurred.” Id. On the other
hand, Sears’ state action “only challenged the location of the
picketing; whether the picketing had an objective proscribed
by federal law was irrelevant to the state claim.” Id.
Therefore, the exercise of state jurisdiction of the trespass
claim “would create no realistic risk of interference with the
Labor Board’s primary jurisdiction to enforce the statutory
prohibition against unfair labor practices.” Id. The “arguable
illegality of the picketing” did not deprive state courts of
jurisdiction “to enjoin its trespassory aspects.” Id. at 190.8

8
The Sears Court made the above observations with respect to the prong
of the Garmon test addressing conduct arguably prohibited by the NLRA.
It noted, however, that “[c]onsiderations of federal supremacy . . . are
implicated to a greater extent when labor-related activity is protected than
when it is prohibited.” Sears, 436 U.S. at 200. Such considerations were
mitigated, on the facts of Sears, by the ability of the union to invoke the
jurisdiction of the NLRB. Id. at 201. The Court concluded that the
“[p]rimary-jurisdiction rationale does not provide a sufficient justification
for pre-empting state jurisdiction over arguably protected conduct when
the party who could have presented the protection issue to the Board has
not done so and the other party to the dispute has no acceptable means of
28 RETAIL PROP. TRUST V. UBCJA

2. Morton and Machinists

The Court extended Garmon’s principles to the context of
§ 303 suits in Morton, 377 U.S. at 252. There, during a
strike, the petitioner labor union engaged in secondary
activities to induce customers and suppliers to cease dealing
with the respondent employer. Id. at 253–54. The
respondent filed suit in federal court for violation of § 303
and an Ohio law similar to the tort of tortious interference
with a prospective business advantage. Id. at 254. The trial
court awarded the respondent compensatory damages because
the union had encouraged employees of a third-party to force
their employer to stop doing business with the respondent (in
violation of § 303), the union had persuaded the management
of one of the respondent’s customers to cease doing business
with the respondent (in violation of state law), and the union
had caused the loss of a contract because there were not
enough employees available during the strike to perform the
contract (also in violation of state law). Id. at 255–56. Even
though the strike was peaceful, the trial court also awarded
punitive damages. Id. at 256.

The U.S. Supreme Court reversed. It first held that the
union’s attempts to induce the employees of the third party to
coerce their employer into refraining from conducting
business with the respondent were “a clear violation of
§ 303.” Id. at 256. The Court then took up the question
“whether a court, state or federal, is free to apply state law in
awarding damages resulting from a union’s peaceful strike
conduct vis-a-vis a secondary employer.” Id. at 256.
Quoting Garmon, the Court acknowledged that § 303 did not
preempt all actions arising out of secondary union activity:

doing so.” Id. at 202–03.
 RETAIL PROP. TRUST V. UBCJA 29

[W]e have allowed the States to grant
compensation for the consequences, as
defined by the traditional law of torts, of
conduct marked by violence and imminent
threats to the public order. State jurisdiction
has prevailed in these situations because the
compelling state interest, in the scheme of our
federalism, in the maintenance of domestic
peace is not overridden in the absence of
clearly expressed congressional direction.

Id. at 257 (quoting Garmon, 359 U.S. at 247–48) (alteration
in original) (internal citations omitted).

Nonetheless, the Court found those considerations
“entirely absent in the present case.” Id. It described the
state law at issue as an “Ohio law of secondary boycott” that,
by regulating conduct that Congress chose to leave
unregulated in § 303, “frustrate[d] the congressional
determination to leave this weapon of self-help available” to
unions. Id. at 259–60. The Court held that the Ohio-law
claims were “displaced by § 303 in private damage actions
based on peaceful union secondary activities.” Id. at 261.
The Court also concluded that the preemptive scope of § 303
extended to claims for punitive damages for secondary
activities which violated only state law. Morton, 377 U.S. at
260–61 (“[I]nsofar as punitive damages in this case were
based on secondary activities which violated only state law,
they cannot stand, because, as we have held, substantive state
law in this area must yield to federal limitations. . . .
Accordingly, we hold that since state law has been displaced
by § 303 in private damage actions based on peaceful union
secondary activities, the District Court in this case was
without authority to award punitive damages.”).
30 RETAIL PROP. TRUST V. UBCJA

In Machinists, the Court further explained the new form
of preemption described in Morton. There, an employer’s
dispute with its union regarding the length of the workweek
led to the union’s adopting a resolution forbidding its
members to work any overtime, defined as time in excess of
37.5 hours per week. 427 U.S. at 134. In addition to filing a
complaint regarding the no-overtime resolution with the
NLRB, the employer filed a separate complaint before
Wisconsin’s state labor agency, which entered an order
enjoining the union from enforcing the resolution. Id. at
135–36. The Wisconsin courts upheld the order. Id.

The Court considered whether, assuming that the NLRB
did not have primary jurisdiction (per Garmon), Congress
nonetheless “intended that the conduct involved be
unregulated [by states] because left to be controlled by the
free play of economic forces,” as in Morton. Id. at 140
(internal quotation marks omitted); see also id. at 147–48
(explaining that the “crucial inquiry” under Morton is
“whether the exercise of plenary state authority to curtail or
entirely prohibit self-help would frustrate effective
implementation of the [NLRA]’s processes” (internal
quotation marks omitted)). The Court observed that there
was no evidence that the no-overtime resolution “was
enforced by violence or threats of intimidation or injury to
property.” Id. at 154. Rather, the no-overtime resolution was
“peaceful conduct”—purely economic self-help that Congress
had intended to leave available to workers. Id. at 155.
Accordingly, the Court held, state interference with such
activity would frustrate the purposes of federal labor law and
was preempted under Morton, because “Congress meant that
these activities, whether of employer or employees, were not
to be regulable by States any more than by the NLRB.” Id. at
149.
 RETAIL PROP. TRUST V. UBCJA 31

C. Preemption in This Case

With that background, we are prepared to discuss whether
§ 303 preempts state actions in trespass and nuisance.
Because we conclude that § 303 does not preempt all such
claims (under field preemption), we then consider whether, in
the circumstances of this case, the Mall’s claims conflict with
§ 303 (under conflict preemption).

1. Field Preemption

The district court, following the Seventh Circuit’s
decision in Smart, held that § 303 “completely preempts”
claims related to secondary boycotts, a conclusion that we
construe to be based on field preemption, as we have
explained. We think the district court’s decision is contrary
to Morton and Sears and that the Seventh Circuit’s broad
statement in Smart is simply wrong.

Morton did not hold that § 303 preempts all state causes
of action that may affect secondary boycotts. To the contrary,
it allowed that “in cases involving union violence, state law
has been permitted to prevail.” Morton, 377 U.S. at 257.

Morton was followed by United Mine Workers of Am. v.
Gibbs, 383 U.S. 715 (1966). Gibbs brought suit in federal
court against the United Mine Workers of America, alleging
violation of § 303 and Tennessee tort laws prohibiting
unlawful conspiracy to interfere with contractual agreements.
Id. 719–20. The district court held that Gibbs had no claim
under § 303 but allowed a verdict on the state claims. Id.
720–21. Because the federal claims were dismissed, the
question before the Supreme Court was whether the district
court properly exercised pendent jurisdiction over the
32 RETAIL PROP. TRUST V. UBCJA

remaining state claims. The Court observed that the state
claims were not preempted under Morton because Gibbs had
alleged violence and intimidation. Id. at 721. Significantly,
the Court stated that “the allowable scope of the state claim
implicates the federal doctrine of pre-emption;” the state
claim did not, however, “create statutory federal question
jurisdiction.” Id. at 727 (citing Louisville & N. R. Co. v.
Mottley, 211 U.S. 149 (1908)). The Court then emphasized
that some state causes of action are not preempted by § 303:
“This Court has consistently recognized the right of States to
deal with violence and threats of violence appearing in labor
disputes, sustaining a variety of remedial measures against
the contention that state law was pre-empted by the passage
of federal labor legislation.” Id. at 729 (citations omitted).

Morton and Gibbs show that § 303 does not so fully
occupy the field such that any claim related to secondary
boycotts must be brought under § 303 or not all. Our reading
of Morton comports with several sister circuits, which have
emphasized that the Morton “Court was careful to limit its
holding.” Gulf Coast Bldg. & Constr. Trades Council v. F.R.
Hoar & Son, Inc., 370 F.2d 746, 748 (5th Cir. 1967); see
Peabody Galion v. Dollar, 666 F.2d 1309, 1316 (10th Cir.
1981) (describing Morton’s application to a “small class of
cases”); see also BE & K Constr. Co. v. United Bhd. of
Carpenters & Joiners of Am., AFL-CIO, 90 F.3d 1318 (8th
Cir. 1996) (comparing Morton and Gibbs and concluding
“[s]tates may [ ] regulate” union secondary activity that is
violent or threatens public order); Iodice v. Calabrese,
512 F.2d 383, 390 (2d Cir. 1975) (holding damages under
state law were unavailable “[s]ince the district court . . . found
no evidence of violence” and Morton held § 303 displaced
actions based on peaceful union secondary activities); Gulf
Coast Bldg., 370 F.2d at 748 (“Section 303 . . . has been held
 RETAIL PROP. TRUST V. UBCJA 33

to pre-empt state common law only when peaceful boycotts
are involved.” (emphasis added)).

Sears, for its part, simply confirmed what the Court said
in Garmon and repeated in Morton: Trespass is one “threat[]
to public order” that is not totally preempted by the NLRA.
Garmon, 359 U.S. at 247. Sears expanded the Court’s
discussion in Garmon of what torts a union might be liable
for under state law where its picketing was either “arguably
protected” under § 7 or “arguably prohibited” under § 8. See
Sears, 436 U.S. at 190. Acknowledging that “some violations
of state trespass laws may be actually protected by § 7,” id. at
204, the Court nevertheless held that it was “unwilling to
presume that Congress intended the arguably protected
character of the Union’s conduct to deprive the California
courts of jurisdiction to entertain Sears’ trespass action.” Id.
at 207. If a union’s “arguably protected” conduct is not
necessarily preempted by the NLRB’s primary jurisdiction
under § 7, we are hard pressed to understand how conduct
arguably covered by § 303 must be preempted in toto.

Sears’ analysis of whether trespass was “arguably
prohibited” by § 8—a subsection of which is enforceable
through a private right of action under § 303—likewise gives
us confidence that state tort actions are not fully preempted
by § 303. Indeed, in Sears, the Court acknowledged that even
when “an unfair labor practice charge could have been filed
[with the NLRB],” the state still had an interest in protecting
its citizens where “the exercise of state jurisdiction over the
tort claim” would not interfere with the NLRB. Id. at 196
(emphasis added). “[These] factors . . . warranted a departure
from the general pre-emption guidelines.” Id. at 196
(emphasis added). The Court found that because “Sears only
challenged the location of the picketing,” not its objective,
34 RETAIL PROP. TRUST V. UBCJA

“the controversy which Sears might have presented to the
[NLRB] is not the same as the controversy presented to the
state court.” Id. at 198. Sears is conclusive evidence that the
NLRA does not “so thoroughly occup[y the] legislative field
‘as to make reasonable the inference that Congress left no
room for the States to supplement it.’” Cipollone, 505 U.S.
at 516 (quoting Fidelity Fed. Sav. & Loan Ass’n v. De la
Cuesta, 458 U.S. 141, 153 (1982) (internal quotation marks
and citation omitted)).

We have held as much by implication. In San Antonio
Community Hospital v. Southern California District Council
of Carpenters, 125 F.3d 1230 (9th Cir. 1997), the plaintiff
filed a complaint in federal court alleging a federal claim
under § 303 and various state tort claims—libel, trade libel,
intentional interference with prospective economic advantage,
negligent interference with prospective economic advantage,
and interference with contractual rights. Id. at 1233–35. The
district court preliminarily enjoined the respondent union’s
picket. Id. at 1232. On appeal, citing Morton, we observed
that “interference with prospective economic advantage and
contractual rights claims are preempted by section 303 of the
LMRA. And an employer cannot seek injunctive relief from
a secondary boycott under section 303.” Id. at 1235 (citation
omitted). Accordingly, we moved on to consider the propriety
of an injunction in light of the other state tort claims,
ultimately concluding that relief would be based on the
hospital’s defamation claims. Id. at 1239. If we had believed
that § 303 covered the field, we would have dismissed all of
the state court torts as preempted, but we did not. We did not
 RETAIL PROP. TRUST V. UBCJA 35

then, and we do not now, believe that § 303 leaves no room
for state action.9

The district court concluded differently. It relied on the
Seventh Circuit’s decision in Smart to hold that § 303
preemption is “complete.” Smart, 562 F.3d at 808. We think
Smart is not persuasive on this point and, indeed, is contrary
to Morton and Sears.

In Smart, the plaintiff was the sole proprietor of a
non-union electrical company that contracted to perform
work for the construction of a sports complex. Id. at 801.
Smart alleged that, after he entered into the contract, the
International Brotherhood of Electrical Workers, Local 702,
“coerced” the owner of the sports complex to terminate his
relationship with Smart by threatening “to withhold services
and otherwise to shut down the building project if the owner
did not employ union workers instead of Mr. Smart.” Id.
Smart filed suit in federal court and “included only state
causes of action in his complaint,” among them a claim under
the Illinois Antitrust Act. Id. at 803.

9
In Ethridge v. Harbor House Restaurant, 861 F.2d at 1389, we
observed that the Supreme Court has “noted that Congress has created
some exceptions to the [NLRB’s] exclusive jurisdiction. Thus, cases
involving section 8(b)(4) are removable, see 29 U.S.C. § 187, as are cases
for breach of a collective bargaining agreement, see 29 U.S.C. § 185.” Id.
at 1400 n.7 (citation omitted). Ethridge says nothing about “complete
preemption” but correctly states that §§ 301 and 303 are statutory
exceptions to the NLRB’s exclusive jurisdiction.
36 RETAIL PROP. TRUST V. UBCJA

The Seventh Circuit held that Smart’s “state antitrust
claim [wa]s preempted by federal law.” Id. at 804.10 It noted
that “the activities described by Mr. Smart in his complaint,”
specifically the union’s threats to “shut the project down if
[the owner] continued to use Mr. Smart,” fell within
§ 158(b)(4)’s prohibition on secondary boycott activities. Id.
(alteration in original) (internal quotation marks omitted).

The court in Smart treated the question of the NLRB’s
exclusive jurisdiction under Garmon and the question of
complete preemption under § 303 as two different questions.
The Seventh Circuit held that Garmon preemption was not
“complete,” id. at 805, but then held that preemption was
complete under § 303. Id. at 808. The court asked whether,
in § 303, “Congress meant to ‘exercise [the] extraordinary
pre-emptive power . . . that converts an ordinary state
common law complaint into one stating a federal claim for
purposes of the well-pleaded complaint rule.’” Id. at 807
(quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65
(1987)). It then noted that the Supreme Court in
Metropolitan Life Insurance Company had compared a
provision in ERISA to § 301 and found that both provisions
were subject to the complete preemption rule that permits

10
The procedural posture of Smart is complicated. Smart filed his suit
in federal court, alleging only state claims and asserting diversity
jurisdiction. The Seventh Circuit found that the parties were not diverse,
but instead of dismissing the suit, it requested supplemental briefing from
the parties on whether the court had jurisdiction because there was
complete preemption under Garmon. See Smart, 562 F.3d at 803–05 &
n.6. The court held that there was not “complete pre-emption” under
Garmon, but that there was complete preemption under § 303. The court
then concluded that it had subject matter jurisdiction and that Smart’s state
claims were preempted by § 303. It then remanded with instructions to
allow Smart to re-plead his case under § 303. Id. at 808–09.
 RETAIL PROP. TRUST V. UBCJA 37

removal of cases filed in state court, even if the complaint
raises only state claims. See Metro. Life Ins., 481 U.S. at
63–67. Finding that § 303 “mirrors the broad language” of
§ 301,11 Smart concluded that § 303 “completely preempts
state-law claims related to secondary boycott.” Smart,
562 F.3d at 808.

The Smart court failed to cite Morton at all and, in our
view, Morton is contrary and conclusive. Smart’s analogy of
§ 303 to § 301 might have been reasonable under other
circumstances, but there is no reason to resort to analogies
here; Morton tells us directly that § 303 is compatible with
some state causes of action. As we and other courts have long
recognized, § 303 does not displace all state actions that are
in some way related to a secondary boycott. See, e.g., Gulf
Coast Bldg., 370 F.2d at 748 (holding that claims under
Mississippi law for violent or willful tortious conduct were
not preempted by § 303); Brown & Sharpe Mfg. Co. v. All
Individual Members of Lodges 1088 & 1142 of Dist. No. 64
of Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO,
535 F. Supp. 167, 170 (D.R.I. 1982) (holding that Rhode
Island tort claims based on union violence were not

11
Section 301(a) provides:

Suits for violation of contracts between an employer
and a labor organization representing employees in an
industry affecting commerce as defined in this chapter,
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).
38 RETAIL PROP. TRUST V. UBCJA

preempted); J. Landowne Co. v. Paper Box Makers & Paper
Specialties Union, Local 299, 278 F. Supp. 339 (E.D.N.Y.
1967) (holding that claims under New York tort law for
violence and malicious destruction were not preempted by
§ 303); see also Offices at 2525 McKinnon, LLC v. Ornelas,
681 F. Supp.2d 778, 784–85 (N.D. Tex. 2010); Brawn v.
Coleman, 167 F. Supp.2d 145, 153 (D. Mass. 2001).12

We do not doubt that there are some claims that will be
preempted by § 303. Smart, for example, involved a claim
under the Illinois Antitrust Act, and antitrust has long been an
area of particular concern to labor law, since “there is an
inherent tension between national antitrust policy, which
seeks to maximize competition, and national labor policy,
which encourages cooperation among workers to improve the
conditions of employment.” H. A. Artists & Assocs., Inc. v.
Actors’ Equity Ass’n, 451 U.S. 704, 713 (1981); see also
Connell Constr. Co. v. Plumbers & Steamfitters Local Union
No. 100, 421 U.S. 616, 635–37 (1975). Until Congress
established exceptions to antitrust laws for union activity,
courts often relied on antitrust laws to enjoin strikes as
unlawful restraints on trade. See H.A. Artists, 451 U.S. at 713;
see also 15 U.S.C. § 17 (“Nothing contained in the antitrust

12
We note, moreover, that § 303, unlike § 301, expressly provides for
concurrent state-court jurisdiction. Compare 29 U.S.C. § 185 (“Suits for
violation for contracts between an employer and a labor organization . . .
may be brought in any district court of the united States having
jurisdiction of the parties . . . .”), with id. § 187(b) (“Whoever shall be
injured in his business or property by reason o[f] any violation of
subsection(a) of this section may sue therefor in any district court of the
United States . . . or in any other court having jurisdiction of the
parties . . . .” (emphasis added)). This contrast is further evidence that
Congress did not intend that § 303 occupy the field to the categorical
exclusion of state law.
 RETAIL PROP. TRUST V. UBCJA 39

laws shall be construed to forbid the existence and operation
of labor . . . organizations”); 29 U.S.C. § 105 (“No court”
shall have jurisdiction to enjoin a labor dispute on the
grounds that it is an “unlawful combination or conspiracy”);
2 John E. Higgins, Jr., The Developing Labor Law 2564–96
(6th ed. 2012) (detailing the relationship between the NLRA
and federal antitrust laws).

Similarly, a number of courts have found preemption of
state causes of action addressing economic harms. See, e.g.,
BE & K Constr. Co., 90 F.3d at 1327–30 (holding that,
because there was insufficient evidence of union violence,
claim under Arkansas law for tortious interference with
contractual relations was preempted by § 303); Iodice,
512 F.2d at 390 (holding that claim under New York law for
tortious interference with contractual relations did not involve
violence and was preempted by § 303); Hennepin Broad.
Assocs., Inc. v. NLRB, 408 F. Supp. 932 (D. Minn. 1975)
(holding that Minnesota claims for tortious interference with
business relations and contracts was preempted by § 303).

In the instant case, however, the Mall alleges property-
based torts, rather than economic causes of action. The Mall
is not seeking to prevent or punish labor conduct, but only
conduct that violates the Mall’s time, place, and manner
rules. Thus, this suit is not, fundamentally, a labor case in the
guise of an action in trespass; it is a trespass case complaining
only incidentally, at most, about union conduct. In light of
Morton, we conclude that § 303 does not fully preempt any
suit that is based on conduct arguably prohibited by the
secondary boycott provisions of § 8 and made actionable by
§ 303.
40 RETAIL PROP. TRUST V. UBCJA

2. Conflict Preemption

Although we disagree with Smart and the district court
that § 303 preempts all causes of action that regulate conduct
arguably prohibited by the secondary boycott provisions of
§ 8, our inquiry does not end there. We still must determine
whether the Mall’s state claims are preempted by § 303 in
this case because they “conflict[] with federal law.” Bldg &
Constr. Trades Council, 507 U.S. at 224. Because Garmon
preemption does not apply in this case, see supra, we look to
Machinists preemption to decide this question and inquire
“whether the exercise of state authority [via trespass and
nuisance law] to curtail or entirely prohibit self-help would
frustrate effective implementation of the policies of the
[NLRA].” N.Y. Tel. Co. v. N.Y. State Dep’t of Labor,
440 U.S. 519, 531 (1979).

For several reasons, we do not think that adjudication of
the Mall’s trespass and nuisance claims would “impinge on
[any] area of labor combat designed to be free,” Morton,
377 U.S. at 260 (internal quotation marks omitted), and thus
would not “frustrate effective implementation” of federal
labor policy. First, as a general matter, trespass and nuisance
are labor-neutral torts, far afield indeed from areas of state
law, such as antitrust, that most commonly raise preemption
concerns. Instead of directly regulating relations between
unions and employers, trespass and nuisance law instead
largely touch on noneconomic “interests . . . deeply rooted in
local feeling and responsibility.” See, e.g., Sears, 436 U.S. at
195–97; Hotel Emps. & Rest. Emps. Union, Local 57 v. Sage
 RETAIL PROP. TRUST V. UBCJA 41

Hospitality Res., LLC, 390 F.3d 206, 212 n.4 (3d Cir. 2004).13
It is as true in the context of Machinists preemption as in that
of Garmon preemption that we ought not be quick to “infer
that Congress ha[s] deprived the States of the power to act”
with respect to such local interests. Machinists, 427 U.S. at
136; see also, e.g., Golden State Transit Corp. v. City of Los
Angeles, 686 F.2d 758, 759–60 (9th Cir. 1982). Under either
of these forms of preemption, “the federal law governing
labor relations does not withdraw ‘from the States . . . power
to regulate where the activity regulated [is] a merely
peripheral concern of the Labor Management Relations Act.’”
Machinists, 427 U.S. at 137 (quoting Garmon, 359 U.S. at
243) (alteration in original).14

13
Trespass has been discussed much more extensively than nuisance in
the case law on both Garmon and Machinists preemption, but—at least in
California—the two torts are often interrelated and thus entail markedly
similar considerations. See KFC W., Inc. v. Meghrig, 28 Cal. Rptr. 676,
685 (Cal. Ct. App. 1994) (“Because the creation of either a private or
public nuisance is tortious, such conduct may support a claim for
trespass.”); 5 Witkin, Summary of California Law Torts, § 693, at 1018
(10th ed. 2005) (“Trespass and nuisance are separate torts that protect
different interests, although the same conduct may invade both.”); cf.
Helmsley-Spear, Inc. v. Fishman, 900 N.E.2d 934, 937–38 (N.Y. 2008)
(holding that a suit brought in nuisance arising out of the union’s
drumming outside of the plaintiff’s premises was not preempted by federal
labor law because “[t]he tort of private nuisance, much like the tort of
trespass, has historically been governed by state law. It cannot be said that
Congress, by enacting the NLRA, intended to preempt states from
protecting their citizens from obnoxious conduct.”).
14
While we may not lightly infer that Congress intended to preempt
state laws of general applicability that touch on deeply rooted local
interests, there are nonetheless circumstances where such laws will
frustrate effective implementation of federal labor policy and thus be
preempted. See, e.g., San Antonio Cmty. Hosp., 125 F.3d at 1235
(“[L]ibel actions under state law [are] pre-empted by the federal labor
42 RETAIL PROP. TRUST V. UBCJA

Second, and more importantly, the particular facts of this
case suggest that it will work no interference with the
purposes of federal labor law. The Mall claims not the right
to quash all protest activity by the Union—an expansive
claim that would present a much harder question with respect
to Machinists preemption—but only the right to prevent
Union members from “yelling, chanting loudly in unison,
blowing whistles, hitting and kicking [a] construction
barricade . . . and hitting their picket signs against the Mall
railings.” Such threatening activity is not a “weapon of self-
help” that Congress intended to leave available to unions. Cf.
Farmer v. United Bhd. of Carpenters & Joiners, Local 125,
430 U.S. 290, 299 (1977) (“Nothing in the federal labor
statutes protects or immunizes from state action violence or
the threat of violence in a labor dispute” (citations omitted)).
The sort of “peaceful” protest activities that Machinists
preemption does squarely protect from state interference are
left available by the Mall’s relatively modest time, place, and
manner restrictions. See Morton, 377 U.S. at 259–60.15

laws to the extent that the State [seeks] to make actionable defamatory
statements in labor disputes which were published without knowledge of
their falsity or reckless disregard for the truth.” (internal quotation marks
omitted)).
15
The free-speech provision of the California Constitution, moreover,
has been recognized to be “more definitive and inclusive than the First
Amendment” of the United States Constitution, Wilson v. Superior Court,
532 P.2d 116, 120 (Cal. 1975), and the California Supreme Court has
specifically extended that provision’s protection to expressive activity in
privately owned shopping malls. See Pruneyard, 592 P.2d at 347. This
permissive legal framework gives us additional confidence that any state
regulation here will not interfere with the Union’s activities to a sufficient
extent to cause concern under Machinists.
 RETAIL PROP. TRUST V. UBCJA 43

As the Sears Court held in the related context of Garmon
preemption, we hold that Machinists preemption does not
“sweep[] away state-court jurisdiction over conduct
traditionally subject to state regulation.” Sears, 436 U.S. at
188. Where, as here, a plaintiff’s claims for trespass and
nuisance fall “within the longstanding exception for conduct
which touche[s] interests so deeply rooted in local feeling and
responsibility that pre-emption could not be inferred in the
absence of clear evidence of congressional intent,” id. at 183,
and concern only the application of time, place, and manner
restrictions to raucous and threatening picket activity, cf. id.
at 185, federal preemption does not bar the plaintiff’s claims
from going forward, because the conduct at issue is, at most,
“a merely peripheral concern” of federal labor law.
Machinists, 427 U.S. at 137. To conclude otherwise would
be to expand Machinists preemption beyond its proper scope.

IV. CONCLUSION

We reverse the district court’s September 26, 2011 order
dismissing the state-law claims and the district court’s
February 24, 2012 order granting Appellee Flores’ motion for
judgment on the pleadings. We affirm the district court’s July
12, 2012, order dismissing the remaining § 187 claim. We
remand the case to the district court for consideration of the
state law claims against the defendants.

The question of whether removal of this matter from state
court to federal court was proper is moot, as the Mall waived
any claim to remand to state court once it pled § 303 and
28 U.S.C. § 1331 as a basis for jurisdiction in the SAC. In as
much as only state claims remain, the district court may
decide whether to continue to exercise supplemental
44 RETAIL PROP. TRUST V. UBCJA

jurisdiction over the state claims or send them back to state
court, as appropriate. See 28 U.S.C. § 1367(c).

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.

Each party shall bear its own costs on appeal.