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Batson v. Shiflett3/12/1992
oth Garmon preemption and § 301 preemption." We disagree. Garmon preemption does not apply because the conduct that forms the basis for Shiflett's claims of defamation and intentional infliction of emotional distress is not covered by the NLRA and has been excepted from preemption by the Supreme Court. Section 301 preemption does not apply because resolution of Shiflett's claims does not depend upon interpretation of contracts covered by § 301 of the LMRA.
A.
The Supreme Court first discussed the extent of federal labor preemption in San Diego Bldg. Trades Council v. Garmon, supra. In Garmon, the state court had entertained a suit for an injunction and damages brought by an employer against a union for picketing directed at his customers and suppliers. The picketing had the purpose of pressuring the employer into establishing a union shop. The state trial court rendered judgment for the employer, enjoining the picketing and awarding damages. On appeal, the state Supreme Court affirmed that judgment, holding that the state court had jurisdiction over the dispute. The U.S. Supreme Court granted certiorari to determine whether
the state court had jurisdiction to award damages arising out of peaceful union activity.
The Court rejected the proposition that preemption could be decided on a case by case basis, declaring that general rules were necessary. The Court then formulated the general rule that state regulation is preempted first, " hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8." Id. at 244, 79 S.Ct. at 779, 3 L.Ed.2d at 782. Even where it is not clear that the activity is protected or prohibited, the determination of the status of other activity is to be made by the NLRB, the agency declared by Congress to have special competence. This led to the second part of the Garmon test: " hen an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the [NLRB] . . ." Id. at 245, 79 S.Ct. at 780, 3 L.Ed.2d at 783. The Court, however, recognized two exceptions to this general rule. States may regulate activity (1) which is "merely a peripheral concern" of the NLRA, and (2) "where the regulated conduct touches interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." Id. at 243-44, 79 S.Ct. at 779, 3 L.Ed.2d at 782 (footnote omitted). These exceptions were explicated in later Supreme Court cases.
Following Garmon, the Supreme Court rendered its decision in Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), which concerned an allegedly libelous leaflet about a company official which was circulated by a union during an organizing campaign. A defamation action was brought against the union. The United States District Court dismissed the complaint on the ground that the NLRB had exclusive jurisdiction over the subject matter because the case was controlled by Garmon. On appeal, the Supreme Court noted the importance of uniform
labor regulation and observed that labor disputes are "ordinarily heated affairs . . . frequently characterized by . . . personal accusations, misrepresentations and distortions." Id. at 58, 86 S.Ct. at 660-61, 15 L.Ed.2d at 587. Nevertheless, the Court found that the intentional circulation of defamatory materials fits within the exceptions specifically carved out by Garmon and therefore was not protected by the NLRA. Conse
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