(dissenting). The majority has not cited a single case that endorses a state court action challenging exactly the same conduct the National Labor Relations Board (NLRB or the Board) has already ruled to be protected by the National Labor Relations Act (NLRA or the Act). This is not surprising. Preemption is well-established as a matter of national labor policy, and is meant to avoid just the kind of conflict between federal and state law presented by this case.
*478I.
Under the Supreme Court’s decision in San Diego Building Trades Council v Garmon (359 US 236 [1959]),
“[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes” (id. at 244 [footnote omitted]).
The Garmon court further emphasized that while “[a]t times it has not been clear whether the particular activity regulated by the State was governed by § 7 or § 8 or was, perhaps, outside both these sections” (id.), “courts are not primary tribunals to adjudicate such issues” (id. [emphasis added]). Rather,
“[i]t is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of [a] Court’s authority cannot remain within a State’s power and state jurisdiction too must yield to the exclusive primary competence of the Board” (id. at 244-245 [citations omitted]).
As the Second Circuit recently pointed out, however, even the Garmon court itself
“recognized that the principles it announced were so broad that they would sometimes yield, as where, for instance, the activity regulated was merely peripheral to the federal concerns, or where the states’ need to regulate certain conduct was so obvious that one would not infer that Congress meant to displace *479the states’ power” (Healthcare Assn. of N.Y. State, Inc. v Pataki, 471 F3d 87, 95 [2d Cir 2006], citing Garmon, 359 US at 243-244).
More specifically, “[b]ecause Garmon covers so many different concerns and situations, the one-size fits all remedy can be difficult to administer” (Pataki, 471 F3d at 95), and in Sears, Roebuck & Co. v Carpenters (436 US 180 [1978]), the Supreme Court “distinguished] the substantive and remedial concerns” underlying Garmon “from the primary jurisdiction concern and prescribed] different treatments for each” (Pataki, 471 F3d at 95, citing Sears, 436 US at 201).
In Sears, the Supreme Court found that a California state trespass claim against a group of picketers was not preempted by the NLRA. While the facts of Sears at first seem similar to those of this case, the first sentence of the Sears opinion illuminates the crucial distinction:
“The question in this case is whether the National Labor Relations Act, as amended, 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” (Sears, 436 US at 182 [emphasis added]).
While federal law unquestionably trumps state law where there is an actual conflict, Sears focuses on the grey areas between actual conflict and no conflict at all: areas of “arguable” conflict between state tort law and federal labor law. Where such an “arguable” conflict exists, it is generally accepted that the appropriate federal tribunal should have the first chance to decide whether federal law, in fact, applies—a concept known as “primary jurisdiction.” Importantly, primary jurisdiction lies at the core of Sears, which explicitly relied on the defendant union’s failure to seek an adjudication before the NLRB in reaching its holding:
“The primary-jurisdiction rationale unquestionably requires that when the same controversy may be presented to the state court or the NLRB, it must be presented to the Board. But that rationale does not extend to cases in which an employer has no acceptable method of invoking, or inducing the Union to invoke, the jurisdiction of the Board. We are therefore persuaded that the primary jurisdiction *480rationale 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 doing so” (436 US at 202-203 [first and third emphases added]).
Here, the dispute was, in fact, submitted to the NLRB in the first instance, and the NLRB had ruled on the legality of the complained-of activity (drumming) by the time the nuisance claim was presented to Supreme Court. Accordingly, primary jurisdiction preemption—which Sears indicates can yield where no redress has been sought from a federal tribunal1—is simply not involved.2 Instead, a much more powerful form of preemption is implicated: “[t]he danger of state interference with federally protected conduct [—]the principal concern of the second branch of the Garmon doctrine” (Sears, 436 US at 203). Critically, “there is a constitutional objection to state-court interference with conduct actually protected by the Act” (id. at 200 [emphasis added]). Since the NLRB actually ruled on the complained-of conduct in this case, the central question is whether this conduct was “actually protected” by the Act; in the case of “actually protected” activity, the discretionary exception outlined by Sears for certain “arguably protected” activities is inapplicable as a constitutional matter.
The NLRB’s ruling in this case must be read as finding the complained-of conduct to be “actually protected” under the Act. After Copstat filed a charge against the Union on December 8, 2005, alleging violations of NLRA § 8 (b) (1), (4) and (7) (codi*481fled at 29 USC § 158), the Acting Regional Director of the NLRB “carefully investigated and considered the charges filed by [Cop-stat] against [the Union].” Upon a review of evidence adduced during the Board’s investigation, including “[e]vidence . . . establishing] that approximately six to twelve individuals associated with the Union distributed leaflets and played a drum on four separate days, for approximately IV2 to 3 hours per day, on the sidewalk in front of entrances to the Empire State Building” (emphasis added), the NLRB concluded that “[t]he evidence therefore establishes that the Union was engaged in protected handbilling or leafleting, and not in picketing or other coercive conduct. . . . Neither the use of [a King Kong] costume nor the use of the drum on the days in question, as described above, was sufficient to transform the leafleting activity into unlawful conduct” (emphasis added).
Because the NLRB has issued an actual determination in this case, the majority’s finding of nonpreemption requires the NLRB’s determination to be read not to protect the drumming activity (see Sears, 436 US at 199 [“there is a constitutional objection to state-court interference with conduct actually protected by the Act” (emphasis added)]). But such a reading does not comport with the facts and the weight of federal authority on the issue of “protected activity” under the Act.
While section 8 (b) (4) et seq. of the NLRA—specifically addressed in both Copstat’s complaint and the NLRB’s determination—is generally directed towards prohibited conduct, that section also outlines protected conduct; in particular,
“for the purposes of . . . paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution” (29 USC § 158 [b] [4] [emphasis added]).
*482Critically, it is the proviso to section 8 (b) (4) of the Act protecting “publicity, other than picketing, for the purpose of truthfully advising the public [of a labor dispute]” (emphasis added) that protects handbilling and leafleting directed at non-parties to a labor dispute; the operative language of this proviso is “publicity ... for the purpose of truthfully advising the public,” not the terms “handbilling” or “leafleting,” which are simply terms of art for activities covered by the proviso.3 Thus, it is clear that the NLRB’s determination that distributing leaflets, banging a drum, and wearing a King Kong costume constituted “protected handbilling or leafleting, and not . . . picketing or other coercive conduct” must be read to mean that all three activities (distributing leaflets, banging a drum, and wearing a King Kong costume) were actually protected under section 8 (b) (4) of the Act.
II.
Next, while the majority cites, in the alternative, a putative exception to absolute federal preemption for conduct implicating interests “deeply rooted in local feeling and responsibility” (Garmon, 359 US at 244), the Supreme Court has never applied this principle to conduct adjudged by the Board to be actually protected by the NLRA. Simply reading Garmon itself indicates why; here is the so-called “exception” placed in its proper context within the Garmon opinion:
“States [may have the] 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.
“When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state *483jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes” (Garmon, 359 US at 243-244 [footnotes and citations omitted; emphasis added]).
In short, where conduct is actually found to be protected by the NLRA, as is the case here, this constitutes “compelling congressional direction” and no “inference]” is required to conclude that “Congress ha[s] deprived the States of the power to act.” Consequently, “state jurisdiction must yield.”
III.
Since the NLRB’s January 4, 2006 determination found the complained-of conduct (drumming) to be actually protected by the Act, appellants’ private nuisance action in state court has been preempted by the NLRA. As the Sears court pointed out, “there is a constitutional objection to state-court interference with conduct actually protected by the Act” (436 US at 199 [emphasis added]). Accordingly, I respectfully dissent.
Chief Judge Kaye and Judges Smith and Jones concur with Judge Pigott; Judge Read dissents in a separate opinion in which Judge Graffeo concurs; Judge Ciparick taking no part.
Order reversed, etc.
. Notably, “[t]hat state law might provide remedies unavailable under the NLRA has never been a basis for avoiding Garmon preemption” (Richardson v Kruchko & Fries, 966 F2d 153, 157 [4th Cir 1992], citing Garmon, 359 US at 246-247 [“In fact, since remedies form an ingredient of any integrated scheme of regulation, to allow the State to grant a remedy . . . which has been withheld from the (NLRB) only accentuates the danger of conflict” (359 US at 247 [emphasis added])]; Operating Engineers v Jones, 460 US 669, 684 [1983]). Indeed, “the Supreme Court has made clear that state-law claims may be preempted even when a plaintiff is without a remedy under the NLRA” (Richardson, 966 F2d at 157, citing Guss v Utah Labor Relations Bd., 353 US 1 [1957]).
. The critical role of the Board’s prior ruling in this case cannot be overstated: absent a prior ruling by the NLRB, the plaintiffs’ private nuisance cause of action might well not be preempted by the Act. But we need not, and should not, rule on that issue here, where the NLRB was presented with this dispute and ruled as it did.
. The language of the NLRB’s determination in this case reveals the “publicity” basis for section 8 (b) (4) protection: after concluding that “[t]he evidence therefore establishes that the Union was engaged in protected hand-billing or leafleting, and not in picketing or other coercive conduct,” the Board stated that “[t]he use of an ape costume did not constitute signal picketing, but was a permissible device to draw attention to the Union’s hand-billing activities” (emphasis added).