FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE RETAIL PROPERTY TRUST, a

Massachusetts business trust,

Plaintiff-Appellant,

v.

UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS OF

AMERICA; CARPENTERS LOCAL

UNION NO. 803; JAMES FLORES, an

individual,

Defendants-Appellees.

No. 12-56427

D.C. No.

8:10-cv-01605-

CJC-AJW

OPINION

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 RosenmanLLP,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 secretarytreasurer, 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 secondaryboycott 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 Garmon

4

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 wellpleaded 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 statelaw 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 preemption” 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 (4thCir. 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 theyhave

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 compensatorydamages 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”—purelyeconomic self-help thatCongress

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 interferencewith 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

§ 301,11Smart 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 ofthe 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 propertybased 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 ofthe 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 selfhelp” 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.