Humphries v. PAY AND SAVE, INC.

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 17:02:29 2011.05.05

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-035

Filing Date: March 11, 2011

Docket No. 29,197

WILLIAM R. HUMPHRIES,

Plaintiff-Appellant,

v.

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

Defendants-Appellees.

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.

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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. Defendant Pay and Save, Inc.,
owns and operates Lowe’s Grocery #55, and Defendant 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 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 Defendants’ 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 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

1
Plaintiff withdrew this NLRB complaint before it received consideration.

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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 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 Rule 1-012(B)(1) and (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 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

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LMRA); 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 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 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

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 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 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 Defendants’ 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 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

2
We note that this language is repeated almost verbatim, in paragraph 24 of
Plaintiff’s complaint, asserting that Defendants' violating these principles is the basis for
Plaintiff’s wrongful termination claim.
5
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 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 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
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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 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 Plaintiff’s authority Dominguez reminds us 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
7
consider claims of this type made by supervisors because to do so would “flout the 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 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 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
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{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)

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).

{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
9
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 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

Topic Index for Humphries v. Pay & Save, Inc., Docket No. 29,197

AE APPEAL AND ERROR
AE-SR Standard of Review

EL EMPLOYMENT LAW
EL-TE Termination of Employment
EL-UO Union Organizing

FL FEDERAL LAW
FL-PE Pre-emption

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