F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

T H E R E T A I L P R

O P E R T Y T R U S T , a Massachusetts business trust,

Plaintiff-Appellant
,

v

.

U N I T E D B R

O T H E R H O O D O F C A R P E N T E R S A N D J O I N E R S O F A M E R I C A ; C A R

P E N T E R S L O C A L U N I O N N O

. 803; J A M E S F L O R E S , an individual, Defendants-Appellees

. N o. 12-56427

D.C. No. 8:10-cv-01605- CJ C-AJ W

OPI NI ON

A ppeal from the United States District Court for the Central District of California Cormac J . Carney , District J udg e, Presiding

Arg ued and Submitted November 8, 2013—Pasadena, California

F iled September 23, 2014

B efore: Ronald M. Gould and J a y S. B y bee, Circuit J udg es,

a nd Edward M. Chen, District J udg e. *

Opinion by

J udg e B y bee

* T h e H o n orab le Ed w ard M. Ch en , D istrict J u d g e f o r th e U.S. District Co u rt f o r th e No rth ern District o f Calif o rn i a, sittin g b y

d esig n atio n

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SUMMARY * *

Labor Law

Reversing the district court’s g rant of a motion to dismiss state-law claims and a motion for judg ment on the p leading s, and affirming the dismissal of a federal c laim, the panel h eld that § 303 of th e L abor Manag ement Relations Act did not p r eempt state-law claims for trespass a nd private nuisa n c e related to union activ i t y that may a lso have constituted secondary boy cott activity

. Disag reeing w ith the Seventh Circuit, the panel h e ld that fe d e r a l l a w does not so thoroug hly occupy the f ield that it alway s preempts such claims. The panel held that the L MRA did not confli c t w i th the plaintiff mall owner’s trespass a nd nuisance claims because the claims touched interests deeply

r ooted in local feeling a

nd r esponsibility
, and the plaintiff
soug h t o nly to enforce time, place, and manner r e strictions
ag ainst u nion protesters. The panel r emanded the case to the district court for consideration of the state-law claims.

COUNSEL

Stacey McKee Knig ht (arg ued) and Pamela Tsao, Katten Muchin Rosenman L L P, L os Ang eles, California; Robert T. Smith, Katten Muchin Rosenma n L L P
, W ashing ton, D .C., for Plaintiff-Appellant.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R E T A I L P R O P

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Yuliy a S. Mirz oy a n ( a rg ued) and Daniel M. Shanley
, DeCarlo & Shanley
, a Professional C o r p o r a t i on, L os Ang eles, California, for Defendants-Appellees.

OP INION

B YB EE, Circuit J udg e:

I n this case w e must decide whether § 303 of the L abor Manag ement Relations Act (“L MRA”), codified at 29 U .S.C. § 187, preempts state-law claims for t r e s p a s s and private nuisance related to union conduct that may also cons titute secondary b o y cott activity

. F ollowing the reasoning of Local 20, Teamsters, Chauffeurs & Helpers Union v

. Morton
, 377 U.S. 2 52 (1964), Lodge 76, Int’l Ass’n of Machinists and Aerospace W

ork ers, AFL-CIO v. W

is. Empl. Relations Comm’n
, 427 U.S. 132 (1976), and Sears, Roebuck & Co. v

. San Diego Cnty. Dist. Council o f Carpenters
, 436 U.S. 180 ( 1 9 7 8), we hold that federal law does not so thoroug hl y occupy the field that it alway s p reempts such claims, nor does it conflict w ith the state law claims presented here. W here, a s in this c ase, state claims of tres p as s and nuisance “touch[ ] interests deeply rooted in local feeling and responsibility
, ” Belknap, I

n c

. v

. Hale
, 463 U.S. 491, 4 98 (1983), and the plaintiff seeks only to enfor c e t i me, place, a nd manner restrictions ag ainst unio n p rotesters, “we are unwilling to presume that Cong ress intended

. . . to deprive the California
courts of jurisdiction to entertain [ the nuisance and] trespass action[ s] .” Sear

s , 4 3 6 U.S. at 207. W e reverse the district court’s g rant of the defendants’ motion to dismiss and remand the c ase to the district court for consideration of the state-law claims of trespass and nuisance ag ainst the defendants.R E T A I L P R O P

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I . F ACTS

The Plaintiff-Appellant, Retail Property Trust ( “RPT” o r “the Mall”), o wns B rea Ma l l in B rea, California. The Defendants-Appellees are United B rotherhood of Carpenters

a n d J oiners of America L ocal 803; the Union’s secretary

t r e a s u r e r , J a m e s F l o r e s ; a n d f i c t i t i o u s d e fe n d a n t s (collect i v e ly
, “the Union”). A ccording to the Mall’s alleg ations, in 2 010, one o f th e Mall’s tenants, Urban Outfitters, contracted with n on-union subcontractors t o renovate the store in a dvan c e o f its opening

. F lores sent a letter to the Mall advising it of the Union’s plans to pursue a l abor dispute “under federal labor laws and the F irst Amendment of the United States Constitution, the California Constitution a

nd California L abor L aw.” The Union advised th a t it would “choose the terms [ it] deem[ ed] appropriate in
convey ing [ its] messag e, w ithout censure” and th at it would “publiciz e [ ] ” its c oncerns “at the pr em i s es of every o ne involved in the labor dispute to infor m t h e p u blic o f the presence of a ‘RAT’ contractor.”

The Mall is privately owned, but it has a po l icy for accommodating speech-related a ct ivities on its property

. I t developed its time, place, and manner restrictions to abide b y the California Co n s t itution’s p rotection of “speech a nd petitioning
, reasonab l y e x e rcised, in shopping centers even when the centers are privately owned.” R obins v

. Pruneyard Shopping Ctr.
, 592 P.2d 341, 347 ( Cal. 1979), aff’d sub nom. PruneY ard Shopping Ctr. v. Robins
, 447 U.S. 74 (1980); see also Cali f. C o n st. art. I
, § 2(a) (“Every person may freely speak, write and publish h is or her sentiments o n all subjects.”). The Mall g eneral l y requires petitioners, solicitors, and protestors to fill out an application in advance,
to ag ree to remain within one of two desig na t e d commonR E T A I L P R O P

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areas, and not to create noise of such v olume as to imping e on the peace of the g eneral public, o bstruct pedestrian traffic, o r damag e or destroy any property

. I t also specifically prohibits “phy sical force, obscen e l a ng uag e or g estures, or racial, relig ious or ethnic slurs,” phy sical or verbal threats, o r “any disturbance which is disruptive to the Center’s comm er c ial function.”

The Mall’s rules for p ublic use of common areas specifically recog niz e “Qualified L abor Activity
, ” s uch a s “picketing and/or informational leafletting ,” as a special class of p r o t ected activity

. Unlike other members of the public, labor org aniz a tions a n d their representatives may choose between conducting their a ctivities in a desig nated area or in

an alternate area chosen by the Mall “prox imately

located to the targ eted employ er o r business.” The M a l l reserves the rig ht to prohibit labor activity from areas that would threaten the personal safety

of Mall patrons.

The Mall alleg e d that, beg inning on October 1, 2010, a nd continuing on several occasions that month, doz ens of union members violated these rules when they
, having not filled out an application:

came onto the Mal l’s privately owned

common areas in front of the Urban Outfitters construction s i te and started a disruptive protest by marching in a circl e , y elling
, chanting loudly in unison, bl o w i ng whistles, hitting and kicking the construction b arricade ( w h i ch created a larg e hole in the barricade)
, and hitting their picket sig n s ag ainst the Mall railing s, which created an intimidati n g a nd disquieting environment that interfered withR E T A I L P R O P

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the Mall’s and its tenants’ normal operation o f business.

The Mall alleg ed that union members also cat-called a nd

m ade sex ually provocative g estures toward female patr o n s and, at o ne point, “ moved their p rotesting activities in front of two other tenant stores, neither o f which had any relationship to Urban Outfitters or its contractor.” F lores told the Mall manag er that the Union w ould continue to picket a nd protest “until such time that the Mall either fo r c e d Urban Outfitters to stop their co n s t r u ction work or until the Mall closed d own the [ U r

ban Outfitters] construction.” At no point during these protests was Urban Outfitters open for business

. The Mall claimed it “ received a number o f complaints from its tenants, to whom it has a contractual oblig ation to provide a quiet and peaceful environment to conduct business.”

The Mall filed its complaint in California Superior Court, alleg ing state-law c laims for trespass and nuis a n c e a nd seeking declaratory a n d injunctive relief. The Union immediately removed the c ase to f ederal court on the g r ound tha t t he Mall had alleg ed the e quivalent of unlawful secondary b o y c o t t activity in violation of § 303 of the L MRA. As a r esult, the Union a rg ued, the state claims were not only preempted by federal law, but the Mall had also effectively stated a federal ca use of action. See Morton
, 377 U.S. at 261; Ethridge v. Harbor House Rest.
, 8 6 1 F .2d 1389, 1400 n.7 (9th Cir. 1988).

Section 303 p r o hibits, throug h cross-reference to 29 U.S.C. § 158, labor o rg aniz ations or their ag ent s f r o m “t hreaten[ ing ]
, coerc[ ing ]
, or restrain[ ing ] any person eng ag ed in commerce or in an industry affecting commerce,R E T A I L P R O P

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where

. . . a

n objec t t h e r e o f is

. . . forcing or requiring any person to

. . . cease doing business with any o ther person.” 29 U.S.C. § 158(b)(4)(ii)(B ). These are known as “ secondary boy cott activities,” since they are directed at parties who are
not involved in the labor dispute, as opposed to primary boy cott activities in w hich a union pressures an employ er to chang e its behavior. See Nat’l W o odw ork Mfrs. A ss’n v

. NLRB
, 386 U .S. 612, 644– 4 5 ( 1 9 6 7 ). “The g r avamen o f a secondary b oy cott is that its sanctions bear, not u pon the employ e r who alone is a party to the dispute, but upon some third party who has no concern in it. I ts aim is to compel him
to stop business with the employ er in the hope that this will induce the employ er to g ive in to his employ e es’ demands.” Id. at 627 n.16 (quoting Int’l Bhd. of Elec. W orkers, 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).

I n December 2010, the district c o urt denied the Mall’s request to remand the case to state court. The distri c t c ourt observed that “the sum of RPT’s prese n t a l l eg ations assert that Defendants have v iolate d § 8(b)(4)(B ) [ 29 U .S.C. § 158(b)(4)(B )]

. . . . Specificall y , R P T h as alleg ed that Defendants’ protests have been loud, destructi v e, a nd disruptive, c ausing RPT a n d i ts tenants to suffer damag es.” I t noted that “RPT is itself a targ et of Defendants’ pressure,” since the Union threatened to force the Mall to close the Urban Outfitters construction if it did not pre vent Urban Outfitters from hiring non-union subcontractors. The district
court acknowledg ed that a defendant ordinarily c a n not

remove a case based on the assertion of a federal defense, but f ound there was a “complete preemption” ex ception wh e r e

“ a n y claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and thereforeR E T A I L P R O P

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arises under federal law.” Balcorta v. Twentieth Century-Fox Film Corp.
, 208 F .3d 1 102, 1107 (9th Cir. 2000); see also Smart v. Local 702 Intl’ Bhd of Elec. W o rkers
, 562 F .3d 798, 808 (7th Cir. 2009). T h e c o u r t concluded that “complete preemption [ ] applies,” i n t h is case, denied the motion to

r e mand, and ex e rcised supplemental jurisdiction over the Mall’s trespass and private nuisance claims.

The district court g ave the Mall leave to file an amended complaint, “ in order to make clear that RPT did not intend to pursue any claim ag ainst Defendants bey ond those related to Defenda n t s ’ alleg ed violations of RPT’s time, place a nd

manner restr i c tions.” The Mall filed its F irst Amended Complaint in J anuary 2011 and renewed its motion to remand the cas e to state court. I n the district court’s March 2011 order on the r e newed motion to remand, the court acknowledg ed that the Mall “eliminated ma n y o f its f actual alleg ations reg arding threats and other intimidating behavior by Defendants,” but it held that the Mall still alleg ed that it “suffered injury and harm to its business interests and that the demonstrations obstructed Plaintiff and its tenants free use o f its private p roperty .” The d istrict court held that, because the Mall’s “time, place and manner restrictions p r ohibit the same conduct that is pro h i b i t e d under 29 U.S.C. § 1 58(b)(4)

. . ., RPT’s claims to enforce its time, place and manner rules a re still completely

pre-empted by

the federal statute.”

I n J u l y 2011, the Mall filed a Second Amended Complaint (“SAC”). I t ag ain included claims f or trespass, private nuisance, and injunctive relief for unlawful acts by a union pursuant to California L abor Code § 1138.1, which specifies the r equiremen t s for a court to issue an injunction “in any case involving o r g rowing out of a labor dispute.”R E T A I L P R O P

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Cal. L abor Code § 11 3 8

. 1 ( a). 1 The SAC also included two important new parag

raphs in the section labeled “Parties”:

9. Plaintiff b ring s this action pursuant to Section 303 of th e L abor Manag ement Relations Act (29 U.S. C.A. § 187), hereinafter referred to as the L MRA, to recover damag e s for an illeg a l secondary b o y cott eng ag ed in b y the Def endants herein, tog ether with the cost of this action. Plaintiff furthe r b ring s this action pursuant to state-ba s ed property laws
reg arding the unapproved use a n d trespass on its private property

.

. . .

11. J u r isdiction is c o nferred on this c ourt b y the provisions o f Section 303 and b y 28 U.S.C.A. § 1331. T he Court has pendent jurisdiction o v e r P l a i n t i ff ’s s t a t e -based property claims.

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

I n September 2011, the d istrict court g r anted i n part a nd denied in part the Union’s Rule 12(b)(6) motion to dismiss all of the Mal l ’s c laims. The court g ranted the motion with

1 T h e th i rd cau se o f actio n , w h ich in v ok ed § 1 1 3 8 .1
, essen t ially restated th e alleg ed tresp asso ry an d n u isan ce- cau s in g a c t iv ities o f th e Un io n an d
req u ested an in

j u n ctio n sin ce th e Mall “ h as n o ad eq u ate rem ed y a t law b ecau se m o n etary d am ag e w ill n o t p rev en t Def en d an ts f ro m ” tresp assin g

an d cau sin g a n u isan ce.R E T A I L P R O P

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respect to the Ma l l ’ s claims for state-law trespass, private nuisance, and injunctive relief pursuant to of California L abor Code § 1138.1. I t denied the motion to dismiss with respect to the cause of action added in Parag raph 9 of the SAC and initially broug ht pursua n t to § 303. I t ag ain concluded, quoting Sm a r t , 562 F .3d at 808, that § 303 of the L MRA “‘completely preempts state-law claims related to secondary boy cott activities described in § 158(b)(4)’ and ‘ provides an

ex c lusive federal cause of a c t i o n for the redress of such illeg al activity .’”

At that point, the only claim remaining in the suit was the § 303 claim. I n J anuary 2012 the d istrict court dismissed the claim ag ainst F lores because a § 3 03 claim cannot be broug ht
ag ainst a u n ion member i n his individual capacity

. See Broadmoor Homes, N. v. Cement Masons, Local 594
, 507 F

. Supp. 55, 57 (N.D. Cal. 1 981). F inally
, on J uly 12, 2012, the district court g ranted a motion by the Mall to dismiss voluntarily the remaining § 303 claim pursuant to F ederal Rule of Civil Procedure 41(a)(2).

On J u ly 31, 2012, the Mall a p p e a l ed the J uly 12, 2012 order dismissing the action w i t h prejudice. I t “ directed” its notice of appeal at a l l o f the district court’s previous orders and did not otherwise specify which claims it was appealing

. However, in its b riefing before us, the Mall clarified that the sole issue present ed is whether the district c ourt erred in holding that “a state-law action for trespass and private nuisance is p reempted b y § 303 of L MRA simply because the invasion of property h appened to involve a secondary boy cott by a union.” I t arg

ues that each of the district court’s orders stemmed from a misapprehension of this issue and asks that
t h e judg ment of the district court be vacated in its entirety

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The Mall also asks that the d istrict court b e instructed to remand the case to state court.

I I

. STANDARD OF REVI EW

W e review de novo the di s trict court’s dismissal for failure to state a claim under F e d e r al Rule of Civil Procedure 12(b)(6). Stone v. Travelers Corp.
, 58 F .3d 434, 436–37 (9th Cir. 1995). I n reviewing a motion to dismiss pursuant to Rule 12(b)(6), we must accept a s true all factual alleg ations in the complaint and draw a ll reasonable inferences in favor of the nonmoving party

. Silvas v. E*Trade Mortg. Corp.
, 514 F .3d 1001, 1 003 (9th Cir. 2008). To survive such a motion, a complaint must a lleg e “enoug h f acts to state a claim to relief
t h a t is p lausible on its f ace.” Bell Atl. Corp. v. Two mb l y , 550 U.S. 544, 570 ( 2007); see also Ashcroft v. Iqbal
, 5 5 6 U.S. 662, 678 ( 2009). W e also r eview t h e 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).

I I I

. ANAL YSI S

The Mall’s SAC alleg ed three causes of action: trespass, private nuisance, and injunctive relief for unlawful acts by a union pursuant to California L abor C o d e § 1138.1. The dist r i ct c ourt held that all three causes of a ction were “completely pre-empt[ ed] ” b y § 303, because those state claims were “related to secondary boy cott activities describedR E T A I L P R O P

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in section 158(b)(4)” and made actionable by § 303. 2 Section 303 provides:

(a) I t shall be unlawf

u l

. . . for any labor
org aniz at i on to eng ag e in a ny activity o r conduct d efined as an unfair labor practice in section 158(b)(4) of this title.

(b) W hoever shall be injured in his business o r property by reason o[ f] any viol a t i o n o f subsection (a)

. . . may su e t h e refor 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 A ltern ativ ely
, th e d istrict co u rt treated th e th ree state cau ses o f actio n

as th o u g h t h e y w e re co m p o n en ts o f a f

ed eral cau se o f actio n b ro u g h t

u n d er § 3 0 3

. In th e b ack g ro u n d sectio n o f th e SA C (an d f o r th e f i rst tim e in th e litig atio n ), t

h e Mall stated th at i t w as b rin g in g its actio n p u rsu an t to § 3 0 3 f o r “ an illeg al seco n d ary b o y co tt.” It recited § 3 0 3 as a b asis f o r th e

ex ercise of f

ed eral j u risd ictio n u n d er 28 U.S.C. § 1 3 3 1 , b u t i t did n o t set f o rth a sep arate cau se o f actio n u n der § 30 3

. On ce th e d istrict co u rt d ism issed th e Mall’ s s t ate- law cau ses o f act i o n a s s t ate law claim s, th e Mall elected to d i sm iss v olu n tarily its § 3 0 3 claim an d p u rsu e th is ap p eal. W e lim it o u r d i scu ssio n to th e issu e d ecid ed b y th e d istrict co ur t an d
ap p ealed b y th e Mall: w

h eth er t h e Mall’ s state- law claim s o f tresp ass an d

n u isan ce are p reem

pted b y § 3 0 3

.

3 W e n o te th at § 3 0 3 creates a f ed eral cau se o f

actio n an d p ro v id es f

or j u risd ictio n

. T h at sectio n p ro v id es th at a cau se o f actio n m ay b e b ro u g h t in an y co u rt, f

ed eral o r state, th at h as perso n al j u risd ictio n o v er th e p arties. T h e q u estio n w e ad d ress is w h eth er § 3 0 3 is th e exclu sive remed y f or

co n d u ct th at m ay arise o u t o f certain u n f air lab o r p ractices def

in ed in § 8

o f th e Natio n al La b o r Relatio n s A ct. Sectio n 3 0 3 d oes n o t p ro v id e f or exclu s ive ju risd ictio n

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W e p roc e e d in three steps. F irst, to sharpen the issues before u s, we a d dress the difference b etween “complete” preemption and defensive preemption, often referred to a s conflict or field preemption. Second, we discuss preemption under the National L abor Re l ations Act (NL RA), starting with Garmo n 4 preemption and proceeding to Machinists
pre e m ption u nder § 3 03. T hird, we apply these preemption principles to th i s c a s e, covering both field preemption a nd conflict preemption.

A. “Complete” Preemption v. Defensive Preemption

This case comes to us in a somewhat u nusual posture, a nd understanding the posture is critical to und e rstanding the precise n ature of the issue b efore us. The Mall first filed this

case in state court, and its complaint contained on l y state

causes o f action. The U nion remo v e d t h e case to federal
court on the basis of 28 U.S.C. § 133 1
, c l aiming that the Mall’s action arose under federal law. B u t t h e Union could only r emove the action if the case could h a v e been filed orig inally in federal court. 28 U.S.C. § 1 441(a). B e cause the Mall’s complaint h ad only state-law c l aims and the parties

were not d iverse, the Mall cou l d n o t h ave filed its suit in federal court in the first instance. Cater p i llar Inc. v

. W illiams , 482 U.S. 386, 392 (1987).

Even if the Union an ticipated raising preemption as a federal d efense, that would n o t h a ve been g r o unds for removal. Metro. Life Ins. Co. v. Taylor
, 481 U. S

. 58, 63 (1987). “ The presence or absence of federal-qu e s t i o n jurisdiction is g overned by the ‘ well-pleaded complaint rule,’ whi c h provides that federal jurisdiction ex ists only when a

4 S a n Dieg o Bld

g . Tra d es Co u n cil v. Ga rmo n , 3 5 9 U.S. 2 3 6 (1 9 5 9 ).R E T A I L P R O P

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federal question i s p r e s ented on the face of the plaintiff’s
p r operly pleaded complaint.” Caterpillar
, 482 U.S. at 39 2

. “As a g eneral rule, a b s e n t diversity jurisdiction, a case will
not be removable if the complaint d oes not affirma tively

a l l e g e a federal claim.” Beneficial Nat’l Bank v

. A nders o n , 539 U.S. 1, 6 ( 2003). The well-pleaded complaint rule means that “a case may not be removed to f e d eral court on the basis of a federal def

e n s e , including the defense of pre-emption,

even if the defense is anticipated in the p laintiff’s complaint, and even if b oth parties concede that the f ederal defense is the only question truly

at issue.” Caterpillar , 482 U.S. at 393.

Under these principles, the district court here would have been oblig at e d to decline jurisdiction over the Mall’s complaint and r emand t o s t ate c ourt. After remand, the Union would have been free to assert its defense of f ed e r al preemption and ask the state c ourt to dismiss the Mall’s claims. T he state court’s judg ment on a ny federal preemption d e fense then would have been reviewable by California appellate courts a

nd, 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 recog niz ed, how ev e r , an “independent corollary to the well-pleaded c omplaint rule known a s the complete p re-emption doctrine.” Ca t erpillar
, 4 82 U.S. at 393 (internal quotation marks and cit a t i o n omitted). That doctrine posits that there a re some federal
statutes that have such “ ex traordinary pre-empti v e power” that they “convert[ ] a

n ordinary state c ommon law complaint into one stating a federal claim for purposes of the wellpleaded complaint rule.” M e tro. Life Ins.
, 481 U.S. at 65. “Once an area of state la w has b e e n completely pre-empted,

a n y claim p u rportedly based on that pre-empted state law i sR E T A I L P R O P

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considered, from its inception, a federal claim, and therefore arises under federal law.” Caterpillar
, 482 U.S. at 393. According ly
, “[ w] hen a p l aintiff raises such a completely
p reempted state-law c laim in his c omplaint, a cour t i s oblig ated to construe the complaint as raising a f ederal claim and therefore ‘arising u nder’ federal law.” Sulliva n v. A m

. Airlines, Inc.
, 424 F .3d 267, 2 72 (2d Cir. 2005). W e have commented that

[ c ] o m p l e t e p r e e m p t i o n i s r e a l l y a jurisdictional rather than a preemption doctrine, as it confers ex clusive f e deral jurisdictio n in certain instances where Cong r ess intended the scope of federal law to be so broad as to e n ti r e ly replace any statelaw claim. Complete preemption is a limited doctrine that a

pplies only where a fede r al statutory scheme is so comprehensive tha t it entirely supplants state law causes of action.

Dennis v. Hart
, 724 F .3d 1249, 1254 (9th Cir. 2013) (internal quotation marks and citations o mitted). W e have referred to complete preemption as “super preempt i o n , ” Associated Builders & Contractors, Inc. v. Local 302 Int’l Bhd. of Elec. W orkers
, 109 F .3d 1353, 1356 (9th Cir. 1 997), and have said that its o ccurrence is “rare.” A R CO Envtl. Remediation, LLC

v. M ont. Dep’t of Health & Envtl. Quality
, 213 F. 3 d 1 108, 1114 ( 9th Cir. 2000). I ndeed, the Supreme Court has
recog niz ed only

three instances of “complete jurisdiction.” 5

5 T h e th ree are: (1 ) § 30 1 o f th e L MRA
, 2 9 U.S.C. § 1 8 5
, Avco Co rp

. v. A e r o Lo d g e No

. 7 3 5

, In t ’l Ass’n o f Ma ch i n i

sts , 3 9 0 U.S. 5 5 7
, 5 5 8

– 6 2 (1 9 6 8); (2 ) § 5 02 (a) o f th e Em p lo y ee Retirem en t In co m e Secu rity A ct of 1 9 7 4
, 2 9 U.S.C. § 1 1 3 2(a), Metro

. L ife In s

. , 4 8 1 U

. S

. at 6 5 –6 7 ; an d (3 )R E T A I L P R O P

. T R U S T V

. UB CJ A 16

The Union arg ued, and the district court ag reed, th at § 3 0 3 w as another rare instance of “complete pre-emption
, ” and that the Union could therefore remove the case to federal
court. T he district court relied o n the decision of the Seventh Circuit in S

m art , 562 F .3 d at 798, in which that court h eld that § 3 03 “completely pre-empt[ ed] ” state antitrust law claims and authoriz ed f

ederal jurisdiction after removal. Id. at 808. (W e discuss S

mart in much g r eater detail below.)

Althoug h the district court’s reference to “complete preemption” of the state law claims in its ruling o n the motion to dismiss was understandable in the contex t of the case, it was

error. Once the district court established its subject matter jurisdict i o n over the SAC, the Union’s assertion o f preemption was a defense, n ot a g ro u n d s f or removal. See Martin Gen. Hosp. v. Modesto & Empi r e Traction Co.
, 58 1 F

. 3d 941, 944–46 (9th Cir. 2009). “Complete preemption” is a doctrine applicable to removal juri s d iction only ; it is not a d octrine of defensive preempt i on, althoug h there has b een more than a little confusion in our cases and in the cases g enerally

. I t is g oing to be important for us to keep our terms straig ht.

I n g eneral, there are three forms o f defensive preemption:

ex p ress preemption, field p r e e m p t i on, and conflict preemption. T h e se doctrines are well-established, and their
contours a

re 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.
, 5 0 5 U.S. 504, 516 (199 2). The relationship between “complete
preemp t ion” and defensive p reemption is not entirely clear,

§ § 8 5 an d 8 6 o f t h e N a t i o n al B an k A ct, 1 2 U.S.C. § § 8 5
, 8 6
, Ben eficia l Na t’l Ba n k , 5 39 U.S. at 7

– 1 1

.R E T A I L P R O P

. T R U S T V

. UB CJ A 17

althoug h we a g ree that “[ t] he complete-preemption doctrine must be d isting uished from ordinary preemption.” Sullivan
, 424 F .3d at 272; see also Balcorta
, 208 F .3d at 1107 n.7 ( “I n spite o f its title, the ‘complete preemption’ doctrine is actually a doctrine of jurisdi c t i o n and is not to be confused with ordinary preemption doctrine ( althoug h it is r e l a ted to preemption law).”); S

PGGC, LLC v. Ayo t te , 4 88 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] a ny federal statutes—far more than support complete preemption—will support a de f e n dant’s
arg ument that because f

ederal l a w preempts state law, the defendant cannot b e h e l d liable under state law.” Sullivan
, 424 F .3d at 2 72–73. W e have occasionally —and alway s

c a s u a l l y

— e q u a t e d c o m p l e t e p r e e m p t i o n w i t h f i e l d preemption. See
, e.g. , I

n re NOS Commc’ns
, 495 F

. 3d 1052, 1058 (9th Cir. 2007) (referring to “complete field preemption”); Ting v. A T& T
, 319 F .3d 1 1 26, 1135 (9th Cir. 2003) (“[ F ] ederal law can p reempt and d i s p l ace state law throug h

. . . field preemption (sometimes referred to a s complete p reemption )

. ” ); ARCO E nvtl. Remediation
, 213 F .3d at 1114 (“Preempted state law claims may be removed
to f ederal court only in the rare instances where Cong r ess has chosen to reg u late t he entire field.”). The confusion is not peculiar to us. See, e.g. , J ohnson v. MFA Petroleum Co.
, 701 F .3d 243, 254 (8th Cir. 2012) (B eam, J
., dissenting ) ( “ C o m p l e t e p r e e m p t i o n ( s o m e t i m e s l a b e l e d f i e l d preemption).

. . .”); B o omer v

. AT & T Corp.
, 309 F .3d 404, 417 (7th Cir. 2002) (“A f ederal law may preempt a state law

ex p ressly
, impliedly throug h the doctrine of co n f l ict
preemp t ion, or throug h the doctrine of field ( also known a s complete) preemption.”); Lehmann v. Brown
, 230 F

. 3d 916, 919 (7th Cir. 2000) (“‘[ C] omplete p re e m p t i o n ’ is a misnomer, h a v ing nothing to do with preemption a nd every thing t o d oR E T A I L P R O P

. T R U S T V

. UB CJ A 18

with f ederal occupation of a field.”)

. I t m a y well be that

c o m p lete preemption is a species of field preemption; th e y bear a number of simi l a ri t i e s

. B ut it is also clear that field preemption a

nd complete preemption a re not co-ex te n s ive. F or now, it is enoug h to say that the doctrines serve d istinct
purposes and should b e kept clear a n d separate in our minds. See Sullivan , 424 F .3d at 273 n.7 (“I t is true that the defense of field preemption a

nd the d octrine of complete preemption both rest on t h e breadth, in some crude sense, of a federal statute’s preemptive force. The two ty pes of preemption are, however, better considered distinct.”).

O n ce the district court a c quired federal question jurisdiction unde r § 1 331—not b ecause the Union removed the case under a c omplete preemption theory
, but b e cause the Mall pled federal question jurisdiction in its SAC—the only preemption question remaining in this cas e is one o f defensive preemption, not complete preem ption. 6 The

6 T h e q u estio n w

h eth er th e d istrict co u rt erred in d en y in g th e Mall’ s

m o tio n s to rem an d is t h u s m o o t, as th e Mall’ s assertio n o f f ed eral j u risd ictio n

in th e SA C co n f

erred j u risd ictio n u

p o n th e d istrict co u

rt an d h en ce u p on u s

.

Had th e d i st r i c t c o u rt co erced th e Mall in to am en d in g its co m p lain t i n t h is w ay , w e m ig h t co n clu d e d if f eren t ly
, cf. O’Ha llo ra n v. Un iv. o f Wa s h

. , 85 6 F.2 d 1 3 75
, 1 3 7 8 (9 th Cir. 1 9 8 8 ), b u t n o su ch co ercio n

o c c u r r e d h ere. A f

ter th e d en ial o f eith er o f its m o tio n s to rem an d
, th e Mall co u ld h av e b ro u g h t an in t erlo cu to ry ap p eal u n d er 2 8 U.S.C. § 1 2 9 2 (b ) o r ask ed th e d i strict co u rt t o d ism i ss its claim s to allo w i t to p u rsu e a d irect ap p eal u n der 2 8 U.S.C. § 1 2 9 1

. A t th e v ery least, w h en i t f iled its am en ded co m

p lain t, th e Mall m ig h t h av e in d icated to th e d istrict

co u rt th at it w as d oin g so so l ely in ord er to co m p ly w ith th e d i s trict co u rt’ s

o rd er an d ask ed th e co u rt to n o te its o b j ectio n s to th at o rd er. W e h o ld th e Mall, w h i ch w as rep resen ted b y so p h isticated co u n sel, to th e

co n seq u en ces o f

its ch o ice to “ th r[o ]w

in th e to w el” rath er th an

tak e an yR E T A I L P R O P

. T R U S T V

. UB CJ A 19

Union’s only arg u m ent for dismissal is that the Mall’s state claims are preempted by the L MRA, and that means that we
must c onsider whether Cong ress ex pressly o r impliedly preempted those claims.

W e can dispense with any claim of ex press p r e em p tion: The Supreme Court i tself has o bserved that “[ t] he N L RA contains no ex p ress pre-emption provision.” Bldg. & Constr. Trade s Council v. Associated Builders & Contractors
, 507 U.S. 218, 224 (1993). W e thus turn to the q u e s t i o n o f implied pre e m

p t i o n , “ s t a rt[ ing ] with the b asic assumption that Cong r ess did not intend to disp lace state law” unless “it conflicts with federal law or wo u l d frustrate the federal scheme, or unless [we] discern f rom the totality o f the circumstances that Cong r ess soug h t to occupy the field to the

ex c lusion of the States.” I d

. ( s ec ond a lteration in orig inal) ( i n ternal quotation marks a nd c itations omitted). To dec i d e those questions, we beg in with backgr ound on the c omplex doctrine of preemption of state causes of a c tion b y federal labor law. W e then turn to whether the M a l l ’ s state c laims

o f t h e af o rem en tio n ed s tep s. S

ee Bern stein v. Lin d-W

ald ock & Co

. , 7 3 8 F.2 d 1 7 9
, 1 8 5 (7 th Cir. 19 8 4); see a lso Mo ffitt v. Resid

en tia l Fu n d i n g Co

., L LC
, 6 04 F.3 d 1 5 6, 1 5 9 (4 th Cir. 2 01 0 ); Ba rb a ra v. N.Y. S to ck Exch

., In c. , 9 9 F.3 d 4 9, 5 6 (2 d Cir. 1 9 9 6 ).

In an y ev en t, m o reo v er, th e Mall d id n o t raise an y claim o f co ercio n in its op en in g b rief an d h as th u s w aiv ed all arg u m e n t o n t h is p oin t. S

ee Green wo o d v. F.A.A.
, 2 8 F.3 d 9 71
, 9 7 7 (9 th Cir. 1 9 9 4) (“ We rev iew o n ly issu es w h ich are arg u ed s pecif

ically an d d istin ctly in a p arty ’ s o p en in g b rief .”).R E T A I L P R O P

. T R U S T V

. UB CJ A 20

for trespass a

nd nuisance in this case ar e p re-empted b y § 303. 7

B

. C o nflict Preemption and Field Preemption U nde r Federal Labor Law

The NL RA, later modified by the L MRA, “marked a fundamen t a l chang e in the Nation’s labor policies” b y recog niz ing the rig ht of labor to org aniz e and ex ercise economic power. S

ears , 436 U.S. a t 190. I t b oth permits a nd prohibits certain conduct by e mploy ers and employ ees. Section 7 protects the rig ht o f employ ees “to form, join, o r

a s sist labor org aniz ations, to barg ain c ollectively throug h representatives of their own choosing
, and to e ng ag e in other concerted activities f

o r t he purpose of c ollective barg aining

or other mutual aid or protection,” 29 U.S.C. § 1 57, including the rig ht to c onduct pickets and c o n s umer boy cotts. See NLRB v. Calkins , 187 F .3d 1080, 1086–87 (9th Cir. 1999).

Section 8 bars “unfair labor practice[ s] ” by employ ers a nd by labor org a

niz ations. 29 U.S.C. §§ 1 58(a), 158(b). Section 8 makes it illeg al “for an employ er to interfere with, restrain,

or coerce employ ees in the e x er cise of the rig hts g u aranteed in section [ 7 of the NL RA, 29 U.S.C. § 157]

. ” I d. § 158(a)(1). At the same time, it provides for a federal private c ause o f action for claims based on the conduct of labor org aniz ations

or their ag e nts that constitute unfair labor practices, including secondary boy cott activity

. See id. § 158(b)(4)(B ).

7 T h e Mall m ak es n o d ef

en se o f th e d istrict co u rt’ s d i sm issal o f its claim f o r an in j u n ctio n p u rsu an t to Calif o rn ia L ab o r Co d e § 1 1 3 8 .1
, w h ich itself larg ely reiterated th e tresp ass an d n u i san ce claim s. T h e claim h a s b e e n

w aiv ed o n ap p eal. S

ee S mith v

. M

a rs h
, 19 4 F.3 d 1 0 4 5
, 1 0 5 2 (9 t h Cir. 1 9 9 9 ).R E T A I L P R O P

. T R U S T V

. UB CJ A 21

Courts have addressed federal labor law preemption o f
state provisions larg ely on a c ase-by -case basis, and they have
not alway s adhered to the c onventional categ ories of conflict and field p reemption. The U nited States Supreme Court initially took the position that “Cong ress did not ex haust the full sweep of leg islative power over industrial relations,” a nd thus found that the L MRA “leaves much to the states, thoug h Cong r ess has refrained from telling u s how much.” Garner v

. Teamsters, Chauffeurs & Helpers Local Union No. 776
, 346 U.S. 485, 488 (1953). I t later observed that “Cong ress larg ely displaced state reg ulation of industrial r elations.” W is. Dep’t of Indus., Labor & H

uman Relations v. G ould, Inc.
, 475 U.S. 282, 286 (1986).

The contrast b e tween the Co u r t ’ s pronouncements in Ga r n er and Gould may not b e as g reat as it appears at f irst. The Court has been more apt to find p r e e m ption when it is clear that the states are attempting t o r e gu late the same conduct covered by f

ederal law—that is, w h en states have promulg a ted their own labor codes. As Gould states, federal labor law has “larg ely displaced state regulation of industrial relations. ” Id. (emphasis added). Nevertheless, even with respect to state reg ulation of labor r elat i o n s, “Cong ress developed the framework for self-org a niz ation and collective barg a ining of the NL RA within the l arg er body of state law promoting public health and safety .” Metro

. L ife I ns. , 471 U .S. at 756. A ccording ly
, “ [ f] e d eral labor law in this

sense is interstitial, supplementing state law where compatible, a n d s u pplanting it only when it prevents the accomplis h ment of the purposes of the federal Act.” Id. A s

we w ill see, the preemptive effect of the NL RA i s l e s s clear when state laws of g eneral applicability a ffect labor r e lations, directly or o bliquely

. See Sears
, 43 6 U. S

. at 197 n.27; see

a l s o Gade v. Nat’l Solid W astes Mgmt. Ass’n
, 505 U .S. 8 8
,R E T A I L P R O P

. T R U S T V

. UB CJ A 22

1 0 4

– 0 8 (1992). The NL RA did n ot displace those are a s where the “States traditionally have had g reat lati tude under their p olice p o wers to leg islate as ‘to the p r o t e c t i o n of the lives, limbs, health, comfort, and quiet of all person s .’” M etro. Life Ins.
, 471 U.S. at 756 ( quoting S laughter- H

o u s e Cases
, 83 U .S. (16 W all.) 36, 62 (1872) ( quotation marks a nd citation omitted)).

W ithin the contex t of the N L RA, courts have described two special k inds of defensive preemption. See Chamber of Co m m er c e v. Brown
, 554 U.S. 60, 65 (2008). “The f irst, known a s Garmon pre-emption, ‘ is intended to preclude state inter f e rence with the National L a bor Relations B oard’s interpretation and activ e e n f orcement of the “integ rated scheme of reg ulation” established by the NL RA.’” Id. (quoting Golden State Transit Corp. v. Los Angeles
, 4 75 U.S. 608, 613 (1986)) ( citation omitte d )

. T h e second ty p e o f preemption, “known as Machinists p r e-emption, forbids both the [ NL RB ] and States to reg ulate conduct that Cong ress intended ‘be unreg ulated because left ‘ to be controlled by the free play of economic forces.’” Id. (qu o t i n g Machinists
, 427 U.S. a t 140) (internal quotation marks and ci t a t i ons omitted).

I n order to decide this case, we f i r s t review the d istinct NL RA preemption principles of Garmon

. The p ar t ies concede that Garmon itself i s 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 art i c ulating the preemption doctrine we apply in this

c a se. W e first discuss Garmon and Sears a nd then t u r n t o Morton and Machinists.R E T A I L P R O P

. T R U S T V

. UB CJ A 23

1. Garmon and Sears

Garmon preemption d eals specifically with when a labor
matter must be broug ht be fo r e the NL RB
, a complicated d o ctrine known as p rimary jurisdiction. See Golden St a t e Transit Corp.
, 475 U.S. at 6 13 (“The Garmon rule is intended
to preclude state interference with the National L abor Relations B oard’s interpretation and active enforc e ment o f the integ rated scheme of reg ula t i o n established by the NL RA.” (inte r n a l quotation marks and citation omitted)); Associa t e d B u ilders & Contractors of S. Cal., Inc. v. Nunn
, 356 F

. 3d 979, 987 (9th Cir. 2004). I n this case, the Mall h ad “no rig ht to invo k e [ t h e B o ard’s primary ] jurisdiction,” a nd the Union—th e p a rty that could have broug ht the matter before the B oard—fa i l e d to do so. According ly
, Garmon preemption is not at issue here. Sears
, 436 U.S. at 207. B ut Garmon ’s principles of labor law preempti o n underlie Morton and its prog e ny , which, as discus s e d below, a re important to our analy sis in this case.

I n Garmon
, a union picketed an em p l o y er to force the employ e r to sig n a union-shop contract. Garmon
, 359 U .S. at 237. The employ er first soug ht to bring the matter before the NL RB
, but the B oard declined juris diction. Id. at 238. The employ e r then filed suit in California Superior Court, arg uing that the union had co mmitted a tort based on a state unfair labor practice law. The California court awarded damag es to the employ er, but the U.S. Supreme Court reversed. Id. The Court acknowledg e d that it was unclear whether the union’s conduct was protected

under § 7 of the NL RA or prohibited under § 8. Id. at 245. The Court focused on whe t h e r the NL RB h ad primary jurisdiction to make that d etermination: “W h e n a n activity is arg uably subject to § 7 or § 8 of the Act, the States as well as th e f e d e r a l courts must defer to theR E T A I L P R O P

. T R U S T V

. UB CJ A 24

ex c lusive competence of the [NL RB ] if the dang e r o f state interference w ith National policy is to be averted.” Id. at 245. After Garmon
, the focus of the NL RB ’s primary jurisdiction is the p otential for c onflict with fe d e ra l p olicy

. Id. at 246 (“The g overning consideration is that to allow the States to control activities that are potentially subject to f e d eral
reg ulation involves too g reat a dang e r of conflict with national labor policy .”).

Althoug h Garmon ’s “ a

rg uably subject to” languag e sug g ested a broad p reemption doctri n e , t he Court also reaffirmed that there w ere limits on federal p r ee m p t ion o f
state laws of g eneral applicability

. The Cou rt emphasiz ed
t w o considerations, both rooted in federalism, that bear o n those limits. F irst, i n lig h t of “the p resuppositions of our embracing federal sy stem, including the p rinciple of diffusion of power not as a matter of doctrina i r e l o c a lism but as a p r omoter of democracy ,” the N L RA did not “withdraw[ ] from the States [ ] power to reg ulate w h e r e t h e activity

r e gu lated was a merely peripheral c o n cern of the L abor Manag ement Relations Act.” Id. at 243. Second, the States

re tained power to reg ulate “where the reg ulated conduct touched i n terests so deeply rooted in local feeling a nd

r e s p o n s i b i l i t y t h a t , i n t h e a bsence of c o m p e l l i n g cong ressional direction, we could not infer that Cong ress h ad deprived the States o f t h e p o wer to act.” Id. at 244. Such local interests included “viole n ce and imminent threats to public order,” because “the c ompelling state interes t , i n the scheme of o ur f

e deralism, in the maintenance of domestic
peace is n o t o v e rridden in the absence of clearly ex pressed
cong ressional direction.” Id. at 2 47. The Court concluded there was “no such compelling state intere s t ” present on the facts of Garmon

. Id. at 248.R E T A I L P R O P

. T R U S T V

. UB CJ A 25

B y cont r a st, in Sears
, 436 U.S. at 180, the Court f ound deeply local interests to be at stake, such that Garmon preemption was inappropriate. The issue before the Court in Sears w as whether the N L RA “deprives a state court of the
power to e ntertain an action by an employ er to enforce st a te trespass laws ag ainst pic k e t i ng which is arg uably —but not definitely —prohibit ed or protected by federal law.” Id. at 182. The case arose when a Sears store b r o u gh t a state trespass acti o n a g a i n s t a union after union members—ang ered that the store was e mploy ing non-union carpenters—refused
to comply with Sears’ demand that t h e union cease its picketing activities on its property

. Id.

The state trial court g ranted a preliminary injunction, a nd the California Court of Appeal affirmed, concluding “that the Union’s c ontinuing trespass fe l l within the long standing

ex c e ption for conduct which touc h ed interests so deeply rooted in local feeling a nd responsibility that pre-emption could n ot be inferred in the absence o f clear evidence o f
cong ressional intent.” Id. a t 183 (citing Garmon
, 259 U .S. at 236). However, the California Supreme Court reversed, concluding that since the pi c k eting was both a rg u ably protected by § 7 o f the N L RA and arg uably prohibited by § 8, “state jurisdiction was p re-empted u nder the Garmon
g uidelines.” Id. at 184. T he U.S. Supreme C o u rt g ranted certiorari, noting

that it had until then “not decided w hether,

or under what circumstances, a state court has p ower to

en fo r c e local trespass laws ag ainst a union’s peaceful picketing .” Id.

The Court beg an with the o b servation that Sears h ad broug ht only a trespass claim. Sears had asserted “no claim that the picketing itself violated a ny state or federal law,” a

nd the sto re “ soug ht simply to r emove the pickets from itsR E T A I L P R O P

. T R U S T V

. UB CJ A 26

p r o p erty

. . . . Thus, as a matter of state law, the location o f the picketing was illeg al but the pi c k e t i n g itself was unobjec t i onable.” Id. at 185. The Court had allowed states “to enforce certain laws of g eneral a pplicability even thoug h aspects of the challeng ed c onduct w ere arg uably prohi bited by § 8 of the NL RA,” including laws that f ell within Garmon ’s “local feeling a nd responsibility ” ex ception. Id. at 195 (quoting Garmon
, 359 U.S. at 244). I t cited e x a mples o f claims that were n o t preempt ed by federal law, including : threats o f v iolence, violence, libel, a nd intentional infliction of mental distress. Id. (collecting cases). I t contrasted these

cases w ith state laws, such a s antitrust laws, that conflict with
t h e L MRA when “broug ht to b ear o n precisely the s a m e conduct ” that is a

rg uabl y p r o h i b ited by § 8. Id. at 194 (emphasis added) (internal q u o t ation marks and citations omitted). Reviewing the cases , t he Court identified two relevant “factors which warranted a departure from the
g eneral pre-emption g uidelines in the ‘local interest’ cases”: F irst, there was “a sign i f

i cant state interest in protecting the citiz en from the challeng ed conduct,” a n d second, althoug h “the challeng ed conduct o ccurred in the c o u r se of a labor dispute and a

n unfair labor pract ice charg e could have been filed, the ex ercise of sta te jurisdiction over the tort claim

e ntailed little risk of interference with the reg ulato r y jurisdiction of the L abor B oard.” Id. at 196.

I n the contex t of state laws touching on conduct that is
arg uably p r o h ibited by the N L RA, the Court reduced these
two factors to a sing le test: “The critical inquiry
, therefore, is
not w hether the State is enforcing a law relating specifically
to labor relations or one of g eneral applicatio n b u t 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 L abor B oard.” Id. at 1 97 (emphasis added).R E T A I L P R O P

. T R U S T V

. UB CJ A 27

Only if the controversy is identical to a claim that could have been presented to the B oard would a state court’s ex ercise o f jurisdi ct i o n involve “a r isk of interference with the unfair labor practice jurisdiction of the B oard.” Id.

The Court c oncluded that in that case “the controversy which Sears mig ht have presented to the L abor B oard i s not the same a s the controversy presented to the state court.” Id.
at 198. I f Sears had filed a charg e with the NL RB
, “the federal issue would have been wh e t h e r the picketing h ad a recog nitional or work-reassig n m e nt objective; decision o f that issue would have entailed relatively complex factual a nd leg al determ i n a tions c ompletely unrelated to the simple question whether a trespass had occurred.” Id. On the other hand, Sears’ state action “only challeng ed the location of the picketing ; whether the picketing had an o bjective p roscribed by federal law was irrelevant to t h e s tate claim.” Id. T h erefore, the ex ercise o f state jurisdiction of the trespass claim “would create n o realistic risk of interference with the L abor B oard’s primary jurisdiction to e n f o rce the statutory prohibition ag ainst unfair labor practices.” Id. The “arg uable illeg ality of the picketing ” did n o t deprive state courts o f jurisdiction “to enjoin its trespassory aspects.” Id. at 190. 8

8 T h e S ea rs Co u rt m ad e th e ab o v e o b serv atio n s w ith resp ect to th e p ro n g

o f th e Ga r

mo n t est ad d ressin g co n d u ct arg u ab ly p ro h ib ited b y th e NL RA

. It n o ted
, h o w ev er, th at “ [c]o n sid eratio n s o f f ed eral su p rem acy

. . . ar e im p licated t o a g reater ex ten t w h en lab or- related activ ity is p ro tected th an

w h en it i s p ro h i b ited .” S

ea rs , 43 6 U.S. at 2 0 0

. Su ch co n sid eratio n s w ere

m itig ated
, o n th e f

acts o f S ea rs , b y th e ab ility o f th e u n io n to in v o k e th e j u risd ict i o n o f t h e NL RB

. Id

. at 2 0 1. T h e Co u rt co n clu d ed t h at th e

“ [p ]rim ary

-

j u risd i ctio n ratio n ale d o es n o t pro v id e a su fficien t j u stif

icatio n f o r p re- em p t in g s tate j u risd ictio n o v er arg u ab ly p ro tected co n du c t w h en th e p arty w

h o co u ld h av e p resen ted th e p ro t ectio n issu e to th e B o ard h as

n o t d o n e so an d th e o th er p arty to t h e d i sp u t e h as n o accep tab le m ean s ofR E T A I L P R O P

. T R U S T V

. UB CJ A 28

2. Morton and Machinists

The Court ex tended Garmon ’s principles to the contex t o f § 3 0 3 suits in Morton
, 377 U.S. at 252. There, du r i n g a strike, the petitioner labor u nion eng ag ed in secondary activities to induce customers and suppliers to cease dealing with the respondent employ er. Id. at 253–54. The respondent f

iled suit in federal court for violation of § 303 and an O hio law similar to the tort o f t o r t ious interference with a prospective business advantag e. Id. at 2 54. The trial
court awarded the r espondent c o m p e n s a t o r y damag es because the union had e ncourag ed employ ees o f a third-party to force their employ er to stop doing business with the r espondent ( in violation of § 303), the union had persuaded the manag ement of one of the r espondent’s customers to cease doing business with the respondent (in violation of state law), and the union had caused the loss of a contract b e cause there were not enoug h employ ees available during the strike to perform the
contract (also in violation of state law). Id. at 255–56. Even thoug h the strike was p eaceful, the trial c o u r t also awarded punitive damag es. Id. at 256.

T h e U .S. Supreme Court r eversed. I t first held tha t t h e union’s a ttempts to induce the employ ees of the third party to

co er ce their employ er into refraining from conducting business with the resp o ndent w ere “a clear violation o f § 303.” Id. at 2 56. The Court then took up t he question “whether a c ourt, state or federal, is free to apply state law in awarding damag es resulting from a union’s peacef u l s trike conduct vis-a-vis a secondary e mploy er.” Id. a t 256. Quoting Garmon
, the Court a cknowledg ed that § 303 did not preempt all

actions arising out of secondary union activity :

d o in g so .” Id

. at 2 0 2

– 0 3

.R E T A I L P R O P

. T R U S T V

. UB CJ A 29

[ W ] e have allowed the States to gr ant comp en sation for the consequences, a s defined by the traditional law of torts, o f conduct marked by violence an d imminent thr eats 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 overr i d d e n in the absence o f clearly ex pressed cong ressional direction.

Id. at 257 (quoting Garmon , 359 U.S. at 247–48) (alteration in orig inal) (internal citations om itted).

Nonetheless, the Court found those considerations “entirely abse n t in the present case.” Id. I t described the
state law at issue as an “Ohio law of secondary boy cott” that, by reg ulating conduct t hat Cong r ess chose to leave

u nreg ulated in § 303, “frustrate[ d] the cong ressional determination to leave this weapon o f self-help available” to unions. Id. at 259–60. The Court held t h at the Ohio-law claims w ere “ displaced by § 3 03 in privat e damag e actions based on peaceful union second a r y a c tivities.” Id. at 261. The Court also concluded that the p reemptive scope of § 303

ex t e n d e d to claims for punitive damag es for secondary activities which violated only state law. Morton
, 3 77 U.S. at 260–61 (“[ I ] nsofar as punitive damag es in this case were ba s ed on secondary activities which violated only state law, they c annot stand, b ecause, as w e have held, substantive state l a w in this area must y ield to federal limitation s

. . . . According ly
, we hold that since state law has been displaced by § 303 in private damag e ac tions based on peaceful union

s econdary activities, the District Court in this cas e w a s without authority

to award punitive damag es.”).R E T A I L P R O P

. T R U S T V

. UB CJ A 30

I n M ach i n i s ts , the Court further ex plained the new form of preemption described in Morton

. There, an employ er’s dispute with its u nion r eg ardin g t h e leng th of the workweek led to the union’s ado p t i n g a resolution forbidding its members to work any overtime, defined as time in ex cess of 37.5 hours p er week. 427 U.S. at 134. I n addition to filing a complaint reg arding the no-overtime r e s o lution with the NL RB
, the employ er f

iled a separate complaint b efore W isconsin’s state labor ag ency , which entered an order enjoining the union from enforcing the resolutio n

. Id. at 135–36. The W isconsin courts upheld the order. Id.

The Court considered whether, assuming that the NL RB did not have primary jur i s d i c tion (per Garmon ), Cong ress nonetheless “ intended that t h e conduct involved be

un reg ulated [ by states] because left to b e controlled by the free play of economic forces,” a s i n M o rton

. Id. at 140 (internal quotation marks omitted); see also id. at 147–48 (ex plaining that the “crucial inquiry ” under Morton is “whether the ex ercise of plenary state authority to cu r t a i l o r entirely prohibit s e lf-help would frustrate effective implementat i o n o f the [ NL RA] ’s processes” (internal quotation marks omitted)). The Court obse rved that there

was n o evidenc e t h at the no-overtime resolution “was enforced by viole nce or threats of intimidation or injury to property .” I

d. at 154. Rather, the no-overtime resolution was

“ p e aceful conduct”—purely e c ono m i c s e l f

- h e l p t h a t C o n g r e s s had intend e d t o leave available to workers. Id. a t 155. According ly
, the Court held, state interference w i t h such activity would frustrate the purposes of federal labor law a nd

was p reempted under Morton
, because “Cong ress meant that these activities, whether o f employ er or employ ees, were not to be reg ulable by States a n y more than b y the NL RB

. ” Id. at 149.R E T A I L P R O P

. T R U S T V

. UB CJ A 31

C. Preemption in This Case

W ith that backg round, w e a re p r epared to discuss whether § 303 preempts state actions in trespass and nuisance. B ecause we conclude that § 303 does n ot preempt all s u ch claims (under field p reemption), w e then consider whether, in the circumstances of this case, the Mall’s claims conflict with § 303 (under conflict preemption).

1. F ield Preemption

The d istrict court, following the S e venth Circuit’s decision in Smart
, he l d that § 303 “completely preempts” claims related to secondary boy cotts, a conc l u s i on that we construe to be based on field preemption, as we have

ex p lained. W e think the dis trict court’s decision is contrary to Morton and Sears and that the S ev e n t h 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 boy c otts. To the contrary , it allowed that “in cases involvi n g union violence, state law has been permitted to prevail.” M orton , 377 U.S. at 257.

Morton was followed by United Mine W orkers of Am. v. Gibbs
, 383 U.S. 715 ( 1 966). G ibbs b roug ht sui t i n federal
court a g ainst the United Mine W orkers of America, alleg ing vi o l a tion o f § 303 and Tennessee tort laws p rohibiting unlawful c onspiracy to interfere with contractual ag reements. Id. 719–20. The district court held that Gibbs had n o claim under § 303 but allowed a verdict on the state claims. Id. 7 2 0 –21. B ecause the federal claims w ere dismissed, t h e question b efore the Supre m e Court w as whether the district
court properly ex ercised p endent jurisdictio n o ver theR E T A I L P R O P

. T R U S T V

. UB CJ A 32

r e m a ining state claims. The Court observed that the stat e claims were not preempted u n der Morton because Gibbs h ad alleg ed violence and intimidation. Id. at 721. Sig nificantly
, the Court stated that “the a llowable s c o p e of the state claim implicates the federal doctrine of pre-emption;” the state claim did not, however, “create statutory federal q u e s t i o n jurisdiction.” Id. at 727 (citing Louisville & N

. R

. C o

. v

. Mottley
, 211 U.S. 149 (1908 ) )

. T he Court then emphasiz ed that some state causes of action are not preempted by § 303: “This Court has consistently recog niz ed the rig ht o f States to deal w ith violence a

nd threats of violence appearing in labor disp utes, sustaining a variety of remedial measures ag ainst
t h e c o n t ention that state law was pre-empted by the passag e of federal labor leg islation.” Id. at 729 (citations omitted).

Morton and Gibbs show that § 3 03 does not so f ully
occupy the field such that any claim r e lated to secondary boy cotts must be broug ht under § 303 or not all. Our r eading of Morton comports with several sister cir c u i t s , which have emphasiz ed that the M

orton “Court was c areful to limit its holding .” Gulf Coast Bldg. & Constr. Trades Council v. F

. R. H o ar & Son, I

nc. , 370 F .2d 746, 748 (5th Cir. 19 6 7 ) ; s e e Peabody Galion v. Dollar
, 666 F

. 2d 1309, 1316 (10th C i r. 1981) ( describing Morton ’s a p p lication to a “small class o f cases”); see also BE & K Constr. Co

. v

. U n i t e d Bhd. of Carpenters & Joiners o

f Am., AFL-CIO
, 90 F .3d 1318 (8th Cir. 1996) (comparin g M o rton and G ibbs and concluding “[ s ] t a t es may [ ] reg ulate” union secondary activity that is violent or th r e a t ens public order); Iodice v. Calabrese
, 512 F .2d 383, 390 (2d Cir. 1975) (holding d a m a ge s under
state law were unavailable “[ s] ince the district court

. . . f ound

no evidence of violence” and Morton held § 303 displaced actions based on peaceful union secondary a ctivities); Gulf Coast Bldg.
, 3 70 F .2d at 748 (“Section 303

. . . has been h eldR E T A I L P R O P

. T R U S T V

. UB CJ A 33

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

Sears
, for its part, simply c onfirmed what the Court said in G armon and repeated in Morton : Trespass is one “threat[ ]
to public order” that i s n ot totally preempted by the N L RA. Garmon
, 359 U.S. at 247. Sears ex p a n d e d t he Court’s discussion in Garmon o f w hat torts a union mig ht b e l i a ble for under state law where its picketi n g w a s either “arg u ably protected” under § 7 or “arg uably p rohibited” under § 8

. See Sears
, 436 U.S. at 190. Acknowledg ing 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 t h a t Cong ress intended the arg uably protected character of the Union’s conduct to d eprive the California
courts of jurisdiction to e ntertain Sears’ trespass action.” Id.
at 207. I f a u nion’s “arg uably protected” conduct is not necessarily preempted by the NL RB ’ s p r i m ary jurisdiction under § 7, we are hard p ressed to u nder stand how conduct
arg uably covered by § 303 must be preempted in toto.

Sears ’ a n aly sis of w hether trespass was “arg u ably prohibi t e d ” by § 8—a subsection of which is enforceable throug h a private rig ht of action under § 303—likewise g ives

us confidenc e that state tort actions are not fully p reempted by § 3 03. I ndeed, in Sears
, the Court acknowledg ed that even when “an unfair la b o r practice c harg e could have been filed [ with the N L RB ] ,” the state still had an interest in protecting its citiz ens where “the ex e r c i s e o f state jurisdiction over the
tort claim” would n ot interf er e w i t h the NL RB

. Id. at 196 (emphasis added). “[ These] f actors

. . . warranted a departure from the g en e r a l p re-emption g uidelines.” Id. at 196 (emphasis added). The Court f ound that because “Sears only challeng ed the location o f the picketing ,” not its objective,R E T A I L P R O P

. T R U S T V

. UB CJ A 34

“the controversy which Sears mig ht have p r e s e n t ed to the [ NL RB ] is not the same as the controversy presented to t he
state court.” Id

. at 198. Sears is conclusive evidence that the NL RA does not “so thoroug hly occup[ y the] leg islative field ‘as to make reasonable the inference that Cong ress le f t no

room for the States to supplement it.’” Cipollone
, 5 0 5 U

. S.
at 5 1 6 ( q u oting Fidelity F ed. Sav. & Loan Ass’n v. De la Cuesta
, 458 U.S. 141, 153 (1982) (internal quotati o n marks and citation omitted)).

W e have held as much b y implication. I n San Antonio Community H

ospital v. Southern California District Council

o f C a rpenters , 125 F .3d 1230 ( 9th Cir. 1997), the p laintiff filed a complaint in federal court alleg ing a federal c la im under § 303 and vario u s state tort claims—libel, trade libel, intentional in t e r f

e r e n c e w i t h p r o s p e c t i v e e c o n o m ic advantag e , neg lig ent interference with prospective e conomic advantag e , and interference with contractual rig h ts. Id. at 1233–35. The district court preliminarily enjoined the respo n dent union’s picket. Id. at 1232. On a ppeal, citing M

o r t o n , we observed that “ interference w ith prospective e c o nomic advantag e a nd contractual rig hts claims are preempted by section 3 03 of the L MRA. And an employ er cannot seek injunctive relief from

a secondary b oy cott under section 3 03.” Id. at 1235 (citation omitted). A ccording ly
, w e moved on to consider the propriety of an injunction in lig h t o f the other state t o r t c l aims, ultimately concluding that relief w ould be based on the hospital’s defamation claims. Id. a t 1239. I f we had believed that § 303 covered the field, we would have dismissed all of the state court torts as preempted, but we did not. W e did notR E T A I L P R O P

. T R U S T V

. UB CJ A 35

t h e n , and we do not now, believe that § 303 leaves no roo m for state action. 9

The district court concluded differently

. I t relied on t he Sev e n t h Circuit’s decision in Smart to hold that § 303 preemption is “complete.” S mart , 562 F

. 3d at 808. W e think Smart is not persuasive on this point and, indeed, is contrary to Morton and Sears

.

I n Smart
, the pl a intiff was the sole proprietor o f a

no n

- union electrical c ompany that contracted to perform work for the construction of a sports complex

. Id. a t 801. S m a r t alleg ed that, a f

ter he entered into the contract, the I nternational B rotherhood of Electrical W orkers, L ocal 702, “coerced” the owner of the sports complex t o 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 o f M r

. Smart.” Id. Smart filed suit in federal court and “i n c l u ded only state

causes of action in his complaint,” among them a claim under the I llinois Antitrust Act. Id. at 803.

9 In Eth rid

g e v. Ha rb o r H

o u se Resta u ra n t , 8 6 1 F.2 d at 1 3 8 9
, w e

o b serv ed th at th e Su

p r e m e C o u

rt h as “ n oted th at Co n g ress h as created

so m e ex cep tio n s to th e [NL RB ’ s] ex clu s iv e j u risd i c t i o n

. T h

u s, cases in v o lv in g s ectio n 8 (b )(4 ) are rem o v ab le, see 2 9 U .S.C. § 1 8 7
, as are cases f o r b reach o f a co llectiv e barg ain in g ag reem en t, see 2 9 U.S.C. § 1 8 5 .” Id

. at 1 4 0 0 n .7 (citatio n o m itted ). Eth r id g e say s n o th in g ab o u t “ co m plete
p reem p tio n ” b u t co rrectly states th at § § 3 0 1 an d 3 0 3 are statu to ry

ex cep tio n s to th e NL RB ’ s ex clu siv e j u risd ictio n

.R E T A I L P R O P

. T R U S T V

. UB CJ A 36

The Seventh Circuit h eld that S m a r t’s “state antitrust claim [ wa] s preempted by federal law.” Id. at 804. 1 0 I t noted that “the activities described by Mr. Smart in h is complaint,” specifically the union’s threats to “ s h u t the project down if [ the owner] continued to use Mr. Smart,” fell within § 158(b)(4)’s prohibition on secondary b oy cott activities. Id. (alteration in orig inal) (internal quotation marks omitted).

The c ourt in Smar t treated the q uestion o f the N L RB ’s

ex c lusive jurisdiction under G armon and the question o f complete preemption under § 303 as two different questions. The Sev e n t h Circuit held that Garmon preemption was not “complete,” id. at 8 05, but then h e l d that preemption was complete under § 3 0 3. Id. at 808. The court asked w hether, in § 303, “Cong ress meant to ‘ex ercise [ the ] ex traordinary pre-emptive power

. . . tha t co n v e rts an ordinary state

common law complaint into one statin g a federal c laim for
purposes of the well-pleaded complain t rule.’” Id. at 807 (quoting Metro. Life Ins. Co. v. Taylor
, 4 8 1 U.S. 58, 65 (1987)). I t then not e d t h at the Supreme Court in Metropolitan Life In s urance Company had compared a provision in ERI SA to § 301 and f ound that both provisions

were subject to the complete preemption ru l e that permits

10 T h e p ro ced u ral po stu

re o f S ma rt is co m

p licated

. Sm art f

iled h i s su i t in f ed e r a l c o u rt, alleg in g o n l y state claim s an d assertin g d i v ersity j u risd ictio n

. T h e Sev en th Circu it f o u n d th at th e p arties w ere n ot div erse, b u t in stead o f d ism issin g th e su it, it req u ested s u pp lem en tal b rief

in g f ro m th e p arties o n w

h eth e r t h e co u rt h ad j u risd ictio n b ecau se th ere w as

co m plete preem

p tio n u n d er Ga r

mo n

. S ee S ma rt , 5 6 2 F.3 d at 8 0 3

– 0 5 &

n .6

. T h e c o u r t h eld th at th ere w as n o t “ co m p lete p re- em

p tio n ” u n der Ga rmo n , b u t t

h at th ere w as co m

p lete p reem

p tio n u n d er § 3 0 3

. T h e co u rt th en co n clu d ed th at it h ad su bj ect m atter j u risd ictio n an d th at S m art’ s state claim s w ere p reem

pt ed b y § 3 0 3. It th en rem an d ed w ith in stru ctio n s to allo w Sm art to re- p lead h is case u n der § 3 0 3. Id . at 8 0 8

– 09

.R E T A I L P R O P

. T R U S T V

. UB CJ A 37

removal of c ases f

i l e d in state court, even if the complaint raises only s t a t e c l aims. See Metro. Life Ins.
, 481 U.S. at 63–67. F inding that § 303 “ mirrors the broad lang u ag e” o f § 301, 1 1 Smart concluded that § 303 “ completely pree m pts sta t e -law claims related to secondary boy cott.” Smart
, 562 F .3d at 808.

The Sm a r t c o u rt failed to cite Morton at all and, in our view, Morton is contrary and conclusive. Smart ’s analog y o f § 3 03 to § 301 mig ht have b e e n reasonable under other circumstances, but there is no reason to resort to analog ies here; M orton tells us d i r e c tly that § 303 is compatible with

some state causes of action. As we and other courts have long
recog niz ed, § 3 03 does not displace all state a c tions that a re in some w ay related to a secondary boy cott. See, e.g. , Gulf Coast Bldg.
, 370 F .2d at 74 8 (holding that c laims under Mississippi law for v iolent or willful tortious conduct were not preempted by § 303); Brown & Shar p e Mfg. Co. v. All Individual Members of Lodges 1088 & 114 2 o f Dist. No. 64 of Int’l Ass’n of

Machinists & Aerospace W o rkers, AFL-CIO
, 535 F

. Supp. 167, 170 (D.R.I

. 1982) (holding that Rh o d e I sland tort c laims based on union violence were not

11 Sectio n 3 0 1(a) p ro v id es:

Su its f o r v i o l a t io n o f co n tracts b etw een an em p lo y er

an d a lab o r o rg an izatio n

rep resen tin g em

p lo y ees in an in d u s try af

f ectin g co m

m erce as d ef

in ed in th is ch ap ter,

o r b etw een an y su c h lab o r o rg an izatio n s, m ay b e b ro u g h t in an

y d istrict co u rt o f th e U n ited States h av in g j u risd ictio n o f th e p arties, w ith o u t resp ect to th e am o u n t in co n tro v ersy or w i th o u t reg ard to th e citizen sh ip of th e p arties.

2 9 U.S.C. § 1 8 5 (a).R E T A I L P R O P

. T R U S T V

. UB CJ A 38

preempted); J

. Landowne Co. v. Paper Box Makers & Paper Specialties Union, Local 299
, 278 F

. Supp. 3 3 9 (E.D.N.Y. 1967) (holding that claims under New York t o r t law for violence a

nd malicious d estruction were not preemp ted b y § 303); see also Offices at 2525 McKinnon, LLC v. Ornelas
, 681 F

. Supp.2d 778, 784–85 (N.D. Tex

. 2010) ; B r a w n v

. Coleman , 167 F . Supp.2d 145, 153 (D. Mass. 2001). 1 2

W e do n ot doubt that there a re some claims that w i l l b e preempted b y § 303. Smart
, for ex ample, involved a claim under the I llinois Antitrust Act, and antitrust h as long been an

area o f particular c oncern to labor law, since “ there is an inherent tension between nationa l a ntitrust policy
, which seeks to max imiz e competition, an d n ational labor policy
, which encourag es cooperation among workers to improve the conditions o f employ

ment.” H. A

. Artists & Assocs., Inc. v

. Actors’ Equity Ass’n
, 451 U.S. 70 4
, 7 1 3 (1981); see also Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100
, 42 1 U .S. 616, 635–37 (1975). Until Cong ress established ex ceptions to antitrust laws for union a ctivity
, courts often relied on antitrust laws to enjoin strikes a s unlawful r estraints on trade. See H.A. Artists
, 451 U.S. at 713;

see also 15 U.S.C. § 17 (“N o t h i n g contained in the antitrust

12 W e n o te, m oreo v er, t

h at § 3 0 3
, u n lik e § 3 0 1, ex p ressly p ro v id es f or

co n cu rren t state- co u rt j u risd ictio n

. Co m p a re 2 9 U.S.C. § 1 8 5 (“ Su its f or

v io latio n f

o r co n tracts b etw een an em p lo y er an d a lab o r o rg an izatio n

. . . m ay be b ro u g h t in an y d istrict co u rt o f th e u n i ted States h av i n g j u risd icti o n o f t he parties

. . . .”), with id

. § 1 8 7 (b ) (“ W h o ev er sh all b e in j u red in h is bu sin ess o r p ro p erty b y reaso n o [f] a n y v io latio n of

su b sectio n (a) o f

th is sectio n

m ay su e th eref

o r in an y d istrict co u

rt o f th e Un i ted States

. . . o r in a n y o t h er c o u rt ha vin g ju risd ictio n o f th e p a rties

. . . .” (em

p h asis ad d ed )). T h is co n trast is f u rth er ev id en ce th at Co n g ress d i d n o t i n t e n d t h at § 3 03 o ccu p y th e f ield to th e categ o rical

ex clu sio n o f state law

.R E T A I L P R O P

. T R U S T V

. UB CJ A 39

laws shall be construed to forbid the ex istence and operation of labor

. . . org aniz ations”); 29 U .S.C. § 105 ( “No court” shall have jurisdiction to enjoin a labor dispu t e on the
g rounds that it is an “ unlawful combination or conspiracy ”); 2 J ohn E. Hig g ins, J r ., The Developing Labor Law 2564–96 (6th ed. 2 012) (detailing the r elationship between the N L RA and federal antitrust laws).

Similarly
, a number of courts h av e found preemption o f
state causes o f action addressin g e c o n omic harms. See, e.g. , BE & K Constr. Co.
, 90 F .3d at 1 327

– 3 0 ( h olding that, because there was insufficient e vidence of uni o n violence, claim under A r k ansas law for tortious interference with contractual r e l a t ions was p reempted by § 303); Iodice
, 512 F .2d at 390 (holding that claim under New York law for
t o r t i ous interference with contractual relations did not invol v e violence and was preempted by § 303) ; Hennepin Broad. Assocs., Inc. v. NLRB
, 408 F

. Supp. 9 32 (D. Minn. 1 975) (holding that Minnesota c laims f or tortious interference with business relations and contracts was preempted by § 303).

I n the instant case, however, the Mall alleg es p ro p erty

based torts, rather than economic c auses of action. The Mall is not seeking to prevent o r p u nish labor conduct, but only

c o n d u c t that violates the Mall’s time, place, and manner rules. T hus, this suit is n ot, fundamentally
, a labor case in the
g uise of an a ction in trespass; it is a trespass case complaining

on l y incidentally
, at most, about union conduct. I n lig ht o f Morton
, we conclude that § 303 does not fully pr e e m p t any suit that is bas ed o n conduct arg uably prohibited by the secondary boy cott provision s o f § 8 and made actionable b y § 303.R E T A I L P R O P

. T R U S T V

. UB CJ A 40

2. Conflict Preemption

Althoug h we disag ree with Smart and the dis t r i ct court that § 303 preempts all causes o f action that reg ulate conduct
arg uably prohibited by the secondary boy cott provisio n s o f § 8, our inquiry does not end there. W e still must determine whether the Mall’s state c l a i m s are preempted by § 3 03 in this case b ecause they “ conflict[ ] with federal law.” Bldg & Constr

. Trades Council
, 507 U.S. at 224. B ecause Garmon preemption does not apply in this case, see supra , we look to Machinists preemption to decid e t h is question and inquire “whether the ex ercise of state authority [ v ia t respass a nd nuisance law] to curtail o r entirel y p r o h ibit self-help would frustrate effective implementation of the policies of the [ NL RA]

. ” N.Y

. Tel

. C o

. v. N.Y

. State Dep’t of Labor
, 440 U.S. 519, 531 (1979).

F or several reasons, we do not think that adjudication of the Mall’s trespass and nuisance c laim s would “imping e on [ any ] area of labor c ombat desig ned to be free,” Morton
, 377 U.S. at 260 ( internal quotation marks omitted), and thus would not “frustrate effective implementa t i on” of federal labor policy

. F irst, as a g eneral matter, trespass and nuisance

are labor-neutral t o r t s , far afield indeed from areas o f state law, such as antitrust, that most commonly raise preemption

concerns. I nstead of d i r ectly reg ulating relations b etween unions and employ ers, trespass and nuisance law instead larg e ly touch on noneconomic “interests

. . . deeply rooted in local feeling and responsibility .” See, e

. g. , Sears
, 436 U.S. at 195–97; Hotel Emps. & Rest. E mps. Union, Local 5 7 v. SageR E T A I L P R O P

. T R U S T V

. UB CJ A 41

Hospitality Res., LLC
, 3 90 F .3d 206, 212 n.4 (3d Cir. 2004). 1 3 I t is as true in the contex t of Machinists preemption as in that of Garmon preemption t h at we oug h t not be quick to “infer th a t C o ng ress ha[ s] d eprived the States of the power to act” wit h 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 7 58, 759–60 (9th Cir. 1982). U nder either of the s e fo r ms of preemption, “the federal law g overning labor relations does not withdraw ‘from the States

. . . power to r eg ulate where the activity reg ulat e d [ is] a merely periphe r a l c o n c e rn of the L a bor Manag ement Relations Act.’” Machinists
, 427 U. S

. at 137 (quoting Garmon
, 359 U.S. at 243) (alteration in orig inal). 1 4

1 3 T resp ass h as b een d iscu ssed m u ch m ore ex ten siv ely th an n u isan ce in th e case law on b o th Ga rmo n an d Ma ch in ists p reem p tio n , b u t—at l east in C a l i fo r n ia—th e tw o to rts are o f ten in terrelated an d th u s en tail m ark ed ly sim ilar co n sid eratio n s. S ee KFC W

., In c. v. Meg h rig , 2 8 Cal. Rp tr. 6 7 6
, 6 8 5 ( C a l

. Ct. A

p p

. 1 99 4 ) (“ B ecau se th e creatio n o f eith er a p riv ate o r p u b lic n u i s an ce is to rtio u s, su ch co n d u ct m ay su p p o rt a claim f

or tresp ass.”); 5 W itk in
, Su m m ary o f Calif

orn ia L aw T o r t s , § 6 9 3
, at 1 0 1 8 (1 0 th ed

. 20 0 5 ) (“ T resp as s a n d n u isan ce are sep arate to rts th at p ro t ect d if f eren t in terests, alth o u g h th e sam e co n du ct m ay in v ad e b o th .”); cf. Helmsley-S

pea r, In c

. v. Fish ma n , 9 00 N .E.2 d 9 3 4
, 93 7

– 3 8 (N.Y. 20 0 8) (h o ld i n g th at a su it b ro u g h t i n n u isan ce arisi n g o u t o f th e u n io n ’ s d ru m m in g o u tsid e o f th e p lain tif f ’ s p rem ises w as n o t p reem p ted b y f ed eral lab o r law b ecau se “ [t]h e to rt o f p riv ate n u i san ce, m

u ch l ik e th e to rt of tresp ass, h as h isto rically been g o v ern ed b y state law

. It can n o t b e said th at Co n g ress, by en actin g th e NL RA
, i n ten d ed to p reem p t states f

ro m p ro tectin g th eir citizen s f ro m o b n o x i o u s co n d u ct.”).

14 W h ile w e m ay n o t lig h tly i n f er th at Co n g ress in te n d ed to p reem p t state law s o f g en eral ap p licab ility th at to u ch o n d eep ly ro o ted l o cal in terests, th ere are n o n eth eless circu m s t an ces w h ere su ch law s will f ru strate ef

f ectiv e im p lem en tatio n of f

ed eral lab o r p o licy an d t h us b e p r e e m p ted

. S ee, e.g

. , S

a n An to n i o Cmty. Ho sp

. , 1 2 5 F.3 d at 1 2 3 5 (“ [L ]ib el actio n s u n d er state l aw [are] pr e -e m p t e d by th e f

ed eral l ab orR E T A I L P R O P

. T R U S T V

. UB CJ A 42

Second, and more importantly
, the particular facts of this

case sug g est t hat it w ill work no interference with the purposes of federal labor law. The Mall claims not the rig ht
to quash all protest a c t i v i t y b y the Union—an ex pansive claim that would present a much h arder question with respect to Machini s ts preemption—but o nly the rig ht to prevent Union members from “y elling
, chanting loudly in unison, blowing w histles, hittin g and kicking [ a] c onstruction b arricade

. . . and hitting their picket sig ns ag ainst the M a l l railing s.” Such threatening a ctivity is not a “weapon o f selfhelp” that Cong ress intended to leave available to u nions. Cf. Farmer v

. United B hd. o

f Carpen ters & Joiners, Local 125
, 430 U.S. 290, 299 (1977) (“Nothing in the federal labor
statutes pro t e cts or immuniz e s from state action v iolence o r the threat of violence in a labor d ispute” (citations o mitted)). The sort of “peaceful” protest acti vities that Machinists preemption does squarely protect from state interference are left available by the Mall’s relatively modest time, place, a nd manner restrictions. See Morton , 377 U.S. at 259–60. 1 5

law s t o t he ex ten t th at th e S tate [seek s] to m ak e actio n ab le d ef am ato ry statem en ts in lab o r d isp u tes w h ich w ere p u

blish ed w ith o u t k

n ow led g e of th eir f alsity or reck less d isreg ard f or t h e tru th .” (in tern al q u o tatio n m ark s

o m itted )).

15 T h e f r e e -s p e ech p ro v isio n o f t h e Calif o rn ia Co n stitu

tio n , m o reo v er, h as b een rec o g n ized to b e “ m o re def in itiv e an d in clu siv e th an th e First A m en d m en t” o f th e Un ited States Co n stitu tio n , W ilso n v. S u p erio r Co u rt , 5 3 2 P.2 d 1 1 6
, 1 20 (Cal. 1 9 7 5 ), an d th e Calif o rn ia S u p r e m e Co u rt h as sp ecif ically ex ten d ed t

h at pro v isio n ’ s p ro tectio n to ex p ressiv e activ ity in
p riv ately o w

n ed sh o p p in g m alls. See P ru n eya rd
, 5 9 2 P .2 d at 3 4 7. T h is
p erm i ssiv e leg al f

ram ew ork

g iv es u s ad d itio n al co n f

id en ce t h at an y state reg u latio n h ere w ill n o t in terf ere w ith th e Un io n ’ s activ ities to a su f f icien t

ex ten t to cau se co n cern

u n d er Ma ch in ists

.R E T A I L P R O P

. T R U S T V

. UB CJ A 43

As the Sears Court held in the related contex t of Garmon preemption, w e h o ld that Machinists preemption does not “sweep[ ] away state

- court jurisdiction over conduct traditionally subject to state reg u lation.” Sears
, 4 3 6 U.S. at 188. Where, as here, a plaintiff’s claims for trespass a nd nuisance f

all “within the long standing ex ception for conduct which touche[ s] interests so d eeply rooted in local feeling a nd responsibility that pre-emption c ould not b e i nferred in the absence of clear evidence of c ong ressional intent,” id. at 183, and c oncer

n only the application o f time, place, and manner

r estrictions to raucous and threatening picket activity
, cf. id

. at 1 85, federal preemption does n ot bar the plaintiff’s c laims from g oing forward, because the conduct at issue is, at most, “a merely p eripheral concern” of federal labor law. Machinists
, 427 U.S. at 1 37. To c o n clude otherwise would be to ex pand M

achinists preemption bey ond its proper scope.

I V. CONCL USI O N

W e reverse the district court’s September 26, 2011 order dismissing the state-law claims and the distr i c t court’s F ebruary 2 4, 2012 order g ranting Appellee F lores’ motion for judg ment on the pleading s. W e affirm the district court’s J uly 1 2, 2012, order dismissing the r emaining § 187 c laim. W e remand th e ca s e to the district court for consideration of the state law claims ag ainst the defendants.

The question of whether r emoval 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 a nd 28 U.S.C. § 1 331 as a b asis f o r jurisdiction in the SAC. I n a s much as only state cla i m s remain, the district court may d e c ide w hether to continue to ex e rcise supplementalR E T A I L P R O P

. T R U S T V

. UB CJ A 44

j u r isdiction over the state c laims or send them b ack to st a t e court, as appropriate. See 28 U.S.C. § 1367(c).

AF F IRMED IN P ART, REVERSED IN P ART, AND REMANDED.

Each party

shall bear its own costs on appeal.