and very interesting case the crux issue is whether or not an individual who publishes a safety newsletter and is fired for doing that violates the public policy of the  state this case when this case is here on this time re judgment motion the judge may hand ruled as a matter of law that the case was preempted the case was also barred by the statute of limitations and then conclude with with my thoughts on the public policy toward itself turning to the preemption argument the question that this court has to decide today is whether or not this case is printed under the l m r him to speak no no no he couldn't without violating public policy have just kept quiet no there is not there is no public policy that forced him to write this newsletter defense he was asking about that is mr smallwood here was engaged in publishing a newsletter on and on and on and on i mean this is just an ongoing enterprise not complaining about a particular condition for which you might have been terminated ongoing basis is that all protected by public policy in the that it is protected in the sense that as long as the seeking is faith and healthy working environment and that's what the newsletter that's what our argument that the newsletter does the newsletter is and is a limitations that's right now i think page helps you in a conclusion that is not preemption under section three zero one page doesn't do much for you one way or the other on garmin or doesn't well it does there is a there is a comment in the page case  ordered to install some pipes at a nuclear waste facility and the pipes were under rated and when they protested installing the pipes they were told either install them or or you're fired and when they refused they were fired it's very similar to distinction here but i think there's also something is a reason i think you're going to have to disagree with platt but i also think that something has arisen in that in the last week in this case that i think throws the garmin doctrine argument out the window in something you don't belong there and believe it or not even though that decision i think hurts my client personally because now he's not going to get to go back to work i think it actually helps on this appeal because the arguments made by the respondents in this case states that me much you know what i think it does because i think he's writing a newsletter and he that is an act that is supportive of sound public policy in the coming good case involving people who got this  was under the mistaken impression you have a computer in your office yes i do facts yes i do but really did you read the case on thursday yes i did your on ok so i got it in the mail is just sort of the way of  have because i assumed i would be allowed to fax it to you on friday and my i was informed by court personnel believe me i don't want to get anybody in trouble on this but i was informed by court personnel that i could not have a fax number the best i could do was bring copies with me which i did and send it overnight because i sent it overnight thanks to mr allison because i had his fax number and i brought it with me because i wasn't sure whether your mail room  i can certainly get that for you you know no i do not know i know my secretary's name but i don't know the court personnel who she talked to about i can certainly find out ok that's this  clear and there's no reason i want to hide the ball from this court about this this decision and the substance we're talking about the next time you get an answer like that's from your secretary you pick up the phone and you call the clerk of the court you can you can be sure that i will your honor ok but it's our court or any other court yes you're i don't want to be standing there again like this you're right i don't know what i would like you to do after this is to go down to  edwards and the other two judges on that panel williams and randolph they they did not disturb the board's finding that mr smallwood was in fact engaged in protected concerted activity governed by section seven  the national labor relations act they vacated the board's holding as moved on that point but they did not disturb the finding now that should make any difference because undergarment the test is whether or not it is arguably preempted and the point here of course is that mr smallwood state court climb turns on the same set of facts that the national labor relations board complaint turned on and that is whether or not the publication of newsletters that had to do not with something that was proprietary to mr small would involve going to his own safe or allegedly unsafe conditions but the safety conditions that others in the workplace were confronted with was arguably governed by section seven the national labor relations act the board held  was the d c circuit did not disturb that finding so to the extent that's important which i don't i don't believe it necessarily is it reinforces the argument that there is government preemption because as you noted your honor in the pot case in the eighth circuit they placed great emphasis on whether the whether the whether or not the plaintiff in the state court law case had pursued remedies before the national labor relations board in this case clearly he did and in addition to that don't think they said to the extent there's actual remedies to the i think what they said is to the extent that the the national labor relations board is their remedies are sought by the by in that case the charging party two bites of the apple because garment the supreme court and garland was not concerned with whether or not there is an alternative remedy it was concerned with whether or not the federal regulation through the national labor relations board of protected concerted activity was going to be  regulated only by federal law that's so you're absolutely right it shouldn't matter and i think what you'll find when you read that is that the court said in effect there's no there's no question that it's  arguably related or covered by the national labor relations act in a case where there is an unfair labor practice charge that's while there's just one more additional reason to conclude you know it was also any doubt about whether or not it's  like to highlight a couple things about the public policy court in nevada david smallwood was fired for resuming publication of a newsletter about his employer after he was told to stop he was not fired for making safety complaints to osha which distinguishes his case from a number of the ones that my opponent relies on he was not fired for refusing to perform a hazardous job about which we can assure your describing that right at least as i understood the actual narrative he was told not to publish another one at the very time he was told he had already distributed in the union fire for something you know already done at the time he was told not to do it again and i missed in the cracks yes with all respect your honor you are on may twenty fourth night on may twenty fourth one thousand nine hundred nine david smallwood was brought into the office and told we don't want you to publish another newsletter he sat silently and did not tell the company representatives with whom he was speaking that he already had one in the can that that i understand ok you told me he was told not to do it any did it again yes in december already not at that time in december of one thousand nine hundred seven he was told not to not he was given a final warning at least twice in this case in december of one thousand nine hundred seven after six newsletters that a pet appeared earlier time for us last time and the last time you're now saying it's because he didn't say anything not because what he did afterwards well he was told but he was told when i say he was told not to do it i mean he was told not to do it in december of one thousand nine hundred seven is what i heard that morning was still in effect i understand that ok that's that's my point about that my point is that nevada public policy law  only relates to two things one is refusal to perform an unsafe act like the the worker with an open surgical wound who refused to go into the cyanide pit in the angelo and the other the other exception possible bases on which this court could conclude that the district court was right that's one of them but it also relates to the government preemption claim because as you know there's an exception to garmin preemption in a case that's deeply rooted in state interest like for example that's how you how i can get a state court injunction against mass or violent picketing because of the because of the exception of the garmin rule the point is that the garmin rule does not accept interest like this there are speculative an interest in complaining policy against discharge well then it's not deeply rooted in a and a lot of questions to the extent the court reaches that level of analysis on preemption i think that's right but i don't think you need to reach that level of analysis because the cases there are lots of cases on deeply rooted state interest recognized in about a public policy so you're right if you need to reach that level of analysis then the two are related but i go back to the reason i brought it up was because there are four possible bases  they'll state a claim under nevada public policy law two is the statute of limitations the there is just no question in the record in this case that mr smallwood was discharged if you look at his complaint twenty three of the complaint that he filed in this case back on july two thousand and one it says in paragraph twenty three that there were step three meetings concerning the conversion of the suspension to a discharge in june of  nine more than two years before by the time we get the reply brief in this case what happened in june of one nine hundred ninety nine is characterized as a suspension that's just not true if you look at the collective bargaining agreement there's nothing in the collective bargaining agreement that says that a discharge is not final until the grievance process has been exhausted and finally the cases concerning administrative tolling for pursuit of administrative remedies don't apply here because this was a against complaining about safety but against publishing newsletters and telling him to resort to the contractual agreements or contractual complaint mechanisms because the contract says if you encounter an unsafe condition you have to bring it up that you're suspended because the contract says he was told more than you're suspended he was told you're suspended pending terminations because the steel workers contractors many steel workers contractors do say that you can't terminate someone without first suspending them for five days and that's what happened the contract was observed the company told him you're suspended pending discharge and then on june eighteenth one thousand nine hundred eleven was sent to him that said it's been converted and then if you look regular two places under step two answer right at the top step to ask you this grievances and satisfactory because if you look down to the next line you'll see on just this charge ok and then at the bottom in the answer that was provided by management on june twenty eighth the very last line of what's typed in the blank given the circumstances the discharge is warranted and this grievance is the mine there is absolutely no question either from any interpretation of the contract or interpretation of the record that this man was discharged in june of one thousand nine hundred twenty eighth one thousand nine hundred ninety nine which is more than two years back from the filing of the complaint yes not having anything to do with arbitration because he didn't have to exhaust arbitration to pursue the state court remedy and know that the nevada courts have held and there's no contrary authority that it's a two year special limitations the ninth circuit in fulton had exactly the same situation involving arizona law where the claim was that there was a three year statute of limitations that was based on a lawsuit that was based on the statute and this court held in fulton which we cited in our papers that that reasoning is circular to say that you've got a public policy because there's no private right about action under the statute and then the say that you've got a statutory statue of limitations as opposed to the  personal injury to your statue of limitations that's just circular reasoning thank you very much thank you seeking tenure he was said you don't get it he then six months later said we please reconsider and i said no you don't get it and then he filed a lawsuit two years more than two years after the first and i'll reconsideration but less than two years after the second and the court