USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1295

VINCENT R. TAMBURELLO,

Plaintiff - Appellant,

v.

COMM-TRACT CORPORATION, JOHN F. POLMONARI,

EDWARD MENARD, AND STEVEN DICKIE,

Defendants - Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Lynch, Circuit Judge,

_____________

and Casellas,* District Judge.

______________

_____________________

Matthew Cobb, with whom

____________

Law Office of Matthew Cobb,

__________________________

was on

brief for appellant.

Timothy P. Van Dyck, with
_____________________

whom

Joshua L. Ditelberg
____________________

Edwards & Angell, were on brief for appellees.

________________

and

____________________

October 2, 1995
____________________

____________________

Of the District of Puerto Rico, sitting by designation.

TORRUELLA,
TORRUELLA,

Chief
Judge.
Chief
Judge.
_____________

Vincent

Tamburello

(Tamburello) appeals

employer,

the dismissal of his

Comm-Tract

individuals who

Corporation

complaint against his

(Comm-Tract),

were his supervisors at

and

Comm-Tract.

several

Tamburello

alleges that his supervisors engaged in a course of harassment in

retaliation for

his union

seeks damages under, inter

_____

activities as

and

alia, the Racketeering Influenced and

____

Corrupt Organizations Act (RICO), 18 U.S.C.

the

union steward,

1962(c) (1988), and

Massachusetts Civil Rights Act (MCRA), Mass. Gen. L. ch. 12,

11I (1988).

The district court found that Tamburello's claims

are preempted by the National Labor Relations Act, as amended, 29

U.S.C.

151-161

(1988)

(NLRA), and

complaint

for failure to state a claim

granted, Fed. R. Civ. P. 12(b)(6).

therefore dismissed

his

upon which relief may be

We affirm.

BACKGROUND
BACKGROUND

We review the dismissal de novo, considering only those

__ ____

facts

alleged

in

the

complaint, and

inferences therefrom.

Lesser
______

Cir. 1988).

affirm the

beyond

We will

to relief."

all

v. Little, 857 F.2d 866,

______

dismissal "only if

doubt that [Tamburello] can

would entitle him

drawing

prove no set

reasonable

867 (1st

it appears

of facts which

Id. (citing Conley v. Gibson, 355

__
______
______

U.S. 41, 45-46 (1957)).

In

Comm-Tract.

defendants

July 1991,

He alleges

-- the

Tamburello

that

became a

soon

president, general

union steward

at

afterwards the

individual

manager, and

manager of

Comm-Tract -- began harassing, threatening and intimidating

him.

-2-

Specifically,

Tamburello

alleges

that

they

pulled

him

off

favorable jobs, replacing him with less skilled workers; gave him

menial

took

job assignments;

him off

forced

vehicle;

alleges

jobs to

vacation

or

withheld his

deny him

face

personnel file

overtime pay;

termination; took

made him

away

and made threatening anti-union statements.

that these

actions "were

solely to

from him;

his

take a

company

Tamburello

harass, embarrass,

coerce,

with

and intimidate [him] into giving up his Steward position

the Union."

resigned

his

As

a result of

position

with

this intimidation, Tamburello

Comm-Tract

in

May

1993,

and

alleges that

the

subsequently instituted this action.

DISCUSSION
DISCUSSION

Count

individual

of Tamburello's

defendants conducted

Comm-Tract,

through

1962(c).

Count

II

the affairs

pattern

Tamburello's property rights, in

alleges

complaint

of

Hobbs

of

Act

an enterprise,

extortion

violation of RICO, 18

that

the

individual

of

U.S.C.

defendants

conspired to violate RICO by knowingly joining the enterprise and

by

committing,

racketeering.

or

Count

agreeing to

IV

commit

alleges that

at

least

two acts

all defendants

of

violated

Tamburello's

rights under the MCRA.1

We address the RICO claims

first.

I.
I.

The RICO Claims

The RICO Claims
_______________

____________________

Tamburello does

not appeal the district court's

Counts III and V.

-3-

dismissal of

Tamburello alleges that the

at Comm-Tract constituted

actions of his supervisors

a pattern of extortion

to deprive him

of his rights to speak out on union matters, his rights under the

collective-bargaining

district court

by

the

held that Tamburello's RICO

NLRA,

jurisdiction

agreement, and his right

which

to remedy

prohibited by the Act."

Motor Coach Employees

______________________

"pre-empts

conduct

state

that is

to his job.

The

claims are preempted

and

federal

court

arguably protected

or

Amalgamated Ass'n of Street, Elec. Ry. &

________________________________________

v. Lockridge,
_________

403 U.S.

274, 276

(citing San Diego Bldg. Trades Council v. Garmon, 359

_______________________________
______

(1971)

U.S. 236,

244 (1959)).

The NLRA "is a comprehensive code passed by Congress to

regulate labor relations

foreign

commerce."

238 (1967).

uniform,

The

interstate and

Nash v. Florida Indus. Comm'n, 389 U.S. 235,

____
_____________________

NLRA reflects congressional intent to

nationwide

centralized expert

(NLRB).

in activities affecting

body

of

labor

law

agency -- the National

Accordingly, the

NLRA

jurisdiction over unfair labor

vests

practices.

create a

interpreted

by

Labor Relations Board

the NLRB

with

primary

See 29 U.S.C.
___

158.

Applying these principles, the Garmon

______

Court held that "[w]hen an

activity

or

is arguably subject

to

States as well as the federal courts

8 of

the [NLRA], the

must defer to the exclusive

competence of the National Labor Relations Board if the danger of

state

interference

with

Garmon, 359 U.S. at 245.

national

policy is

to

The Court has interpreted

be

averted."

this to mean

______

that, "as a general

rule, neither state nor federal

courts have
____

-4-

jurisdiction over
____________

arguably subject to

suits directly involving 'activity

7 or

8 of the Act.'"

[which] is

Vaca v. Sipes, 386

____
_____

U.S. 171, (1967) (emphasis added; and quoting Garmon, 359 U.S. at
______

245).

See also
________

186, 194

'exclusive

labor

Morgan v. Massachusetts General Hosp.,

______
___________________________

(1st Cir.

1990) ("as

jurisdiction

practices'")

a general

to find,

(quoting

rule, the

prevent,

901 F.2d

[NLRB] has

and rectify

unfair

New
Mexico Dist. Council
of
_________________________________

Carpenters, AFL-CIO v. Mayhew Co., 664 F.2d 215 (10th Cir. 1981);
___________________
__________

and

collecting

cases)).

preemption doctrine is

"the need to

substantive law in the labor

of leaving

primary

of

avoid conflicting rules

the

of

relations area and the desirability

the development of

agency created by Congress

justification

such rules to

the administrative

for that purpose . . .

."

Vaca, 386
____

U.S. at 180-81.2

The alleged

prohibited by

wrongful conduct in this

the NLRA.

Section 8(a)(3)

case is arguably

of the NLRA

makes it

____________________

Although the Garmon doctrine, which is rooted in the Supremacy

______

Clause of

the United States

Constitution, U.S. Const.

cl. 2, was originally concerned only with

conflicting

state
_____

laws,

relationship between

it

has

the NLRA and

been

art. VI,

federal supremacy over

extended

to

cover the

other federal statutes.

See
___

Connell Co. v. Plumbers & Steamfitters, 421 U.S. 616, 626 (1974);
__________
_______________________
Morgan,
______

901 F.2d at 194;

Baltic Ent.,
___________

813 F.2d

United States
______________
(concluding

503, 504-05

v. Boffa,
_____

(1st Cir.

688 F.2d

that Garmon does not

______

NLRA and federal

Because the

New Bedford Fishermen's Welf. Fund v.

___________________________________

919,

1987).

But see
________

931-33 (3d

Cir. 1982)

apply to conflicts between the

statutes), cert. denied, 460

_____ ______

NLRA's relationship with a

U.S. 1022 (1983).

state statute implicates

the Supremacy Clause, and its relationship with a federal statute

does

not, some

situation should

courts

hold that

the

be stricter than in

analysis in
the latter.

the
See
___

former

Britt v.
_____

Grocers Supply Co., Inc., 978 F.2d 1441, 1446-47 (5th Cir. 1992);
________________________
Boffa, 688
_____
we need

F.2d at 931-33.

not at this time

The facts of this case are such that

decide whether, or to

agree with this proposition.

what extent, we

-5-

unlawful

for an employer "by discrimination in regard to hire or

tenure of employment to encourage or discourage membership in any

labor organization."

question

supervisors

presented

29

by

U.S.C.

158(a)(3).

Tamburello's

at Comm-Tract intimidated,

harassed him into quitting

claims

The

is

ultimate

whether

his

coerced, threatened, and

his job in retaliation for

his union

activities as a union steward.

It is beyond dispute

that these

allegations, if found to be true, would constitute a violation of

the NLRA.

(an

See Sure-Tan, Inc. v. NLRB, 467

___ ______________
____

employer

discouraging

violates

union

8(a)

activity,

(3)

U.S. 883, 894 (1983)

"when, for

. .

it

the

purposes of

purposefully

creates

working conditions so intolerable that the employee has no option

but

to

resign").3

Tamburello's

RICO

Unless an

claims

are

exception

subject to

applies,

the

therefore,

NLRB's

primary

jurisdiction.

There are three generally

NLRB's primary

expressly

jurisdiction.

carved

jurisdiction.

out

an

recognized exceptions to the

The first is

exception

Vaca, 386 U.S. at 179-80

____

to

where Congress

the

NLRB's

has

primary

(citing cases); Brennan

_______

v. Chestnut, 973 F.2d 644, 646 (8th Cir. 1992).

________

Congress has not

____________________

Tamburello's claims are also arguably

subject to

8(a)(1) of

the NLRA, which makes it an unfair labor practice for an employer

to "interfere with, restrain, or coerce employees in the exercise

of the rights guaranteed in [

7 of

(a)(1).

in pertinent part,

shall
assist

Section 7 provides,

the NLRA]."

29 U.S.C.

158

that employees

have the right to "self-organization, to form, to join, or

labor

organizations,

representatives of

to

bargain

their own choosing,

concerted activities for the

collectively

and to

engage in

through

other

purpose of collective bargaining or

other mutual aid or protection . . . ."

-6-

29 U.S.C.

157.

made an

exception to the NLRB's primary

alleging

extortion.

"racketeering"

liability

activity

under

RICO

are

payments and loans to labor

embezzlement

U.S.C.

Indeed,

the

only

expressly

listed

as

labor-related

predicates

to

concerning restrictions

of

organizations, or those relating

to

actions

from labor funds.

186, 501(c).

jurisdiction for claims

See 18 U.S.C.
___

1961(1)(C); 29

The specific exceptions carved out in

186 and 501(c) support the conclusion that Congress intended that

"violations

as

predicate

of labor laws other than

acts are

preempted."

186 [or

Brennan,
_______

(citing Butchers' Union, Local No. 498 v.

______________________________

501(c)] alleged

973 F.2d

at 647

SDC Inv., Inc., 631 F.

______________

Supp.

1001 (E.D.Cal. 1986)).

This

exception therefore does not

apply.

The

second

exception

applies

when

the

regulated

activity touches "interests so deeply rooted in local feeling and

responsibility that,

direction," courts

the

States of

Carpenters,
__________

244).

the

in the absence of

"could not

power to

infer that Congress

act."

had deprived

Sears, Roebuck & Co.

______________________

v.

436 U.S. 180, 195 (1977) (quoting Garmon 359 U.S. at

______

This exception is

because they

compelling congressional

inapplicable to plaintiff's RICO claims

involve the relationship between

two federal laws,

as opposed to a state and a federal law.

The

third exception

holds that

the NLRB's

exclusive

jurisdiction does not apply if the regulated activity is merely a

peripheral

U.S.

or collateral concern of

the labor laws.

at 179-80; Brennan, 973 F.2d at 646.

_______

Vaca, 386
____

Under this exception,

-7-

federal

courts

collateral issues

may

decide

questions

in suits brought under

independent federal remedies.

626;

labor

that

emerge

as

statutes providing for

Connell Construction, 421 U.S. at

____________________

Britt v. Grocers Supply Co., Inc., 978 F.2d 1441, 1446 (5th

_____

________________________

Cir. 1992).

Plaintiff's

of

both RICO

allegations arguably

and the

NLRA --

unfair labor practices on

establish violations

extortion on

the other.

We must

the one

hand, and

determine whether

the issues raised by Tamburello's potential unfair labor practice

claims are merely

collateral to

extortion claims.

In

courts

of the NLRB if

claim is wrongful only by

laws.

by his

RICO

making this determination, several federal

take the position that

jurisdiction

the issues raised

See Brennan, 973

___ _______

courts must defer

to the primary

the underlying conduct

of the RICO

virtue of, or reference to, the

F.2d at 646;

Talbot, 961 F.2d

______

Mann v. Air Line Pilots Assoc., 848 F. Supp.

____
_______________________

labor

at 662;

990, 993 (S.D.Fla.

1994);

McDonough
_________

(S.D.Ill.

v.

1990).

Gencorp, Inc.,
______________

750

F.

federal court

has

framed the

One

Supp.

follows:

RICO should

be read

as

exclusive jurisdiction of
when

the

determine

Court

would

whether

some

defendant's
before

conduct
RICO

established.
act
labor

exists

limited by

the

the NLRA

only

be

forced

portion of

the

violated labor

law

predicate act
So

long as

independent

practice

would

be

the predicate
any

unfair

resolutions, the

NLRB's

exclusive

jurisdiction

since the

Court

of

is not

will not

interpret

labor

collateral

matter.

existence of the

to

law

be forced
except

However,

predicate acts

-8-

violated

as
if

to
a
the

depends

368,

370

issue as

wholly

upon

determination

violation of federal labor

that

law occurred,

jurisdiction is preempted.

MHC
___

v. Intern. Union, United Mine Wkrs. of Am., 685

__________________________________________

1370,

1376-77 (E.D.Ky. 1988).

Similarly, we have

F. Supp.

held, in the

context of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e

"which

et seq., that the NLRA

hinge

on

an

is the exclusive remedy for claims

unfair labor

practice

having

occurred."

Morgan, 901 F.2d at 194.

______

Like

Tamburello,

the

plaintiff

in

Brennan
_______

alleged

extortion

as

predicate

RICO

plaintiff's RICO extortion claim

act.

In

holding

that

was "preempted" (see supra n.2)

___ _____

by the NLRA, the Eighth Circuit court noted that 18 U.S.C.

(1988)

that the

define

conduct

is a

generic

law prohibiting

extortion,4 and

1951

reasoned

court was therefore forced to look to the labor laws to

the alleged

illegal

conduct.

Because the

was illegal, if at all, only

18 U.S.C.

1951 provides:

(a)

Whoever

in

any

way

or

degree

obstructs, delays, or affects commerce or

the movement of any article
in commerce, by
attempts

or

or commodity

robbery or extortion

conspires

so

to

do,

or
or

commits or threatens physical violence to

any

defendant's

by virtue of the NLRA, the

____________________

the

person or property in furtherance of

plan

or

purpose

to

do

anything in

violation of this section shall

not more than

be fined

$10,000 or imprisoned

not

more than twenty years, or both.

RICO defines

"extortion" as

"the obtaining of

property from

another, with his consent,

induced by wrongful use of

threatened force, violence,

or fear, or under color

right."

18 U.S.C.

actual or

of official

1951(b)(2).

-9-

court

concluded

that the

NLRB

had

exclusive jurisdiction

to

resolve what was, at its essence, an unfair labor practice claim.

See Brennan, 973 F.2d at 647.

___ _______

For reasons

conclude

that the

Tamburello's

claims.5

the

unfair

labor practice

complaint are

not

Tamburello alleges

less desirable

overtime

similar to those expressed

pay,

work

made

him

termination, took away his

in Brennan, we
_______

issues implicated

merely collateral

to his

that his supervisors placed

assignments, reduced

take

forced

RICO

him on

his chances

vacation

by

or

for

face

company vehicle, and made threatening

anti-union activities, all to coerce him into giving up his union

steward position,

Comm-Tract.

and, eventually,

The problem

illegal without

reference

prohibits employers from

to resign his

position with

is that none of this alleged conduct is

to the

NLRA.

It is

the NLRA

that

creating intolerable working conditions

to discourage union activities, see 29

___

Tan, 467
___

158(a)(3); Sure_____

U.S. 894, and it is the NLRA that prohibits an employer

from interfering with

engage

U.S.C.

in concerted

an employee's

activities for

See 29 U.S.C.
___

158(a)(1), 157.

Congress passed

the NLRA, at

right to join

mutual aid

and

and protection.

Indeed, one would

least in

a union

presume that

part, precisely

because

____________________

We

note also

employer retaliation

that,
for

in a

general

protected

sense,

union

merely a peripheral concern of the NLRA.

claims alleging

activities

are

not

As indicated above, the

conduct alleged in this case would, if true, constitute an unfair

labor

practice under the

NLRA.

The authority

of the

NLRB to

remedy unfair labor practices is central to its purpose.

NLRB v.
____

State of Illinois Dept. of Employment Security, 988 F.2d 735, 739

______________________________________________
(7th Cir. 1993).

-10-

conduct

such

as

that

theretofore prohibited.

conclusion that

termination

complained

We thus

of

by

Tamburello

was

not

agree with the district court's

"the alleged conduct that

of employment is illegal

led to [Tamburello's]

only by reference to union

activities."

In order to determine whether plaintiff has established

a RICO predicate act, a reviewing court would be forced to decide

whether

some portion

of

federal

labor laws.

Because

determination of

we

conclude

the defendant's

plaintiff's claim

whether an unfair labor

that his

conduct violated

RICO claims

are

hinges upon

the

practice has occurred,

subject to

the primary

jurisdiction of the NLRB.6

As

final

matter,

we

will

the

additional

arguments

proffered

by

Tamburello

contends

that

NLRA

allegations at all because

the

individual defendants,

meaning

"[t]he

of the NLRA.

the

briefly

plaintiff.

does

not

his RICO claims are

and

not the

address

apply

two

First,

to

his

asserted against

"employer" within

the

The NLRA expressly provides, however, that

term 'employer' includes any person acting as an agent of

an employer,

directly or indirectly."

29

U.S.C.

152(2).

The

____________________

We note

that the question

collateral to issues raised

an

intensely fact

particular
whether

of whether a

by a claim under another

driven inquiry.

any or

all

of

the

claims

questions of federal

"[i]t is the conduct being regulated,

governing

concern."

The focus

issue is

statute is

must be

on the

allegations of the plaintiff's complaint to determine

determination of

of

labor law

legal

standards,

that

may

be

resolved

labor law.

without

In addition,

not the formal description

is

the

proper focus

of

Motor Coach Employees v. Lockridge, 403 U.S. 274, 292

_____________________
_________

(1971).

-11-

district court's

finding that

the individual defendants

-- the

president, general manager, and manager of Comm-Tract -- acted as

the

agents

particularly

of

the

since

company

is

Tamburello's

supported

complaint

individual defendants controlled Comm-Tract.

Inc. v. NLRB, 833 F.3d

____
____

could reasonably believe that

and

speaking

Aircraft Plating Co.,

_____________________

reject

the

alleged

record,

that

and

the

See American Press,

___ _______________

621, 625 (6th Cir. 1987) (the test

applied is "whether, under all the

policy,

by

to be

circumstances, the employees

an employee was reflecting company

acting

for

213 N.L.R.B. 664

management")

(1974)).

(quoting

We therefore

Tamburello's argument that the NLRA does not apply to his

RICO claims.

Second, Tamburello

strains to fit his

case within the

exception to Garmon granted

______

of

suits alleging a breach of

fair representation under

9(a) of the NLRA.

the duty

See Breininger
___ __________

v. Sheet Metal Workers Int'l Assoc. Local Union No. 6, 493 U.S.
____________________________________________________

67, 74 (1989)

apply

to

(reiterating rule that Garmon preemption

______

suits

alleging

representation) (citing

not

sue

his

representation

301,

U.S.C.

of

the

Vaca, 386 U.S. at 181).

____

directly,

but

rather

federal jurisdiction

for breach of a

their union for breach

See 29
___

breach

allegations as part of a

which provides

their employer

and

union

duty

of

fair

Tamburello did

brought

his

fair

"hybrid" action under

for employees

to sue

collective bargaining agreement,

of its duty

185(a); Vaca,
____

does not

of fair representation.

386 U.S. at 186.

The Breininger
__________

Court

implied that Garmon would

______

not apply to

hybrid

301/fair

-12-

representation claims because of the important interest of having

the

same

employer

entity

and

adjudicate

the union.

See
___

a joint

claim

Breininger,
__________

against

493 U.S.

both

the

at 80-84.

Tamburello argues that the reasoning of Breininger applies to him

__________

because

he brought both a

RICO claim and

a fair representation

claim.

Breininger
__________

employer

against

for breach

of a

hybrid

actions

collective bargaining

against

the

agreement, and

the union for breach of the duty of fair representation.

Tamburello's

argument

representation claim

court,

concerned

and

is not

fails

because

(Count III)

his

duty

was dismissed by

prosecuted on

appeal,

of

fair

the district

and his

RICO claims

implicate none of the concerns underlying Breininger and Vaca for

__________
____

exempting fair

representation claims

Vaca and Breininger exempted

____
__________

from the Garmon

______

doctrine.

fair representation claims from the

reach of Garmon for two related

______

reasons.

First, the Court noted

that

the duty of fair representation has judicially evolved, and

that it predated the prohibitions against unfair labor practices.

Breininger, 493 U.S.

__________

Second,

noting

matters outside

at 74-79

that fair

the NLRB's

(citing Vaca, 386

____

representation

U.S. at

claims often

unfair labor practice

the Court expressed its

doubt that the NLRB brought

degree

such claims than

of expertise to

courts.

181).

involve

jurisdiction,

any greater

Id.
__

Because

Tamburello has no viable duty of fair representation claim before

the

court, and

his RICO

claims do

-13-

not implicate

the concerns

underlying Breininger,
__________

his claims remain subject

to the primary

jurisdiction of the NLRB.

II.
II.

The State Law Claims

The State Law Claims
____________________

In Count IV, Tamburello alleges that the conduct of his

supervisors violated his rights under the MCRA, Mass. Gen. L. ch.

12

11, which provides a remedy for the interference "by threat,

intimidation,

enjoyment

or

coercion"

with an

of rights secured by

individual's

the constitution or

"exercise or

laws of the

United States, or of

of

rights secured by the constitution

the commonwealth."

Mass. Gen.

L. ch.

12,

11I; Bally v.
_____

Northeastern University, 403 Mass. 713, 717 (1989).

_______________________

above,

the

alleged

arguably subject to

conduct

of

8(a)(3)

Tamburello's

of the NLRA,

As explained

supervisors

which prohibits

employer from discriminating against an employee on

union status,

and also to

8(a)(1).

or laws

is

an

the basis of

As with the

RICO claim,

therefore, the question is whether any of the three exceptions to

Garmon preemption
______

apply.

The

first

and third

exceptions

do

not;7 we address the second exception below.

Garmon preemption
______

regulated activity

feeling

does not apply

when the

touches "interests so deeply

and responsibility

that, in

the absence

underlying

rooted in local

of compelling

____________________

7
out

The first exception -- whether Congress has explicitly carved

an

exception to

the

NLRB's exclusive

inapplicable to Tamburello's state

the third

exception, we

practice issues

law claims.

concluded above

implicated

not merely

collateral

to

his

-- is

With respect

that the

by Tamburello's

merely collateral to his RICO claims.

are

jurisdiction

to

unfair labor

complaint

are

not

For the same reasons, they

MCRA

claims.

The

third

exception therefore does not apply.

-14-

congressional direction,"

courts "could not infer

that Congress

had deprived the States

436

U.S. at

195 (quoting

where, as here,

the

NLRA,

of the power to

Garmon 359
______

act."

Sears, Roebuck,
_______________

U.S. at

244).

the underlying conduct is arguably prohibited by

__________

the

Court

has

identified

two

prerequisites

application of the "local interests" exception.

must have a significant

the challenged conduct.

presented

at 196-97.

citizen from

Second, the controversy which

must be different

presented to the NLRB.

critical

could be

from that which

Sears, Roebuck, 436 U.S.

______________

As the Court explained:

The

to

First, the state

interest in protecting the

to the state court

could have been

In cases

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

court is identical to
from .
but

. .

was

Board.

the state

. . . or different

that which could

not,
For

presented
it

is only

have been,

to

the

in the

Labor
former

situation that a

state court's

of

necessarily involves

jurisdiction

risk

of

interference

with

exercise

the

labor practice jurisdiction of

which the arguably
the

Garmon
______

unfair

the Board

prohibited branch

doctrine

was

designed

of
to

avoid.

Id. at 197.
__

We assume,

interest in

arguendo, that the state

________

has a significant

protecting an

employee from

the harassment

supervisors in retaliation

for his union

activities.

We

of his

agree

with the district court, however, that "Plaintiff's [MCRA] claims

raise

the same

question as would

be asked

in an

unfair labor

practice

proceeding,

namely, whether

[his

supervisors] placed

-15-

plaintiff on less desirable work assignments, reduced his chances

for overtime pay, and

harassed him in retaliation for

his union

activities."

Because the controversy which would be presented to a state court

is identical to that which would

be presented to the NLRB, there

is a significant risk of state interference with the unfair labor

practice

of

the

NLRB.

Under

Garmon
______

and

Sears, Roebuck,
_______________

Tamburello's MCRA claims are therefore preempted by the NLRA.

CONCLUSION
CONCLUSION

For the foregoing reasons, the judgment of the district

court is affirmed.
affirmed
________

-16-