Pemberton v. Bethlehem Steel Corp.

WILNER, Judge. Through a declaration and an amended declaration filed in the Circuit Court for Baltimore City, appellant charged Bethlehem Steel Corporation and 26 of its employees and agents with intentional infliction of emotional distress, invasion of privacy, interference with appellant’s marriage, and conspiracy. Those torts, appellant averred, arose from the following circumstances: (1) appellant was employed as the business agent of Local 24, Industrial Union of Marine and Shipbuilding Workers of America (Local 24); (2) in 1967, he had been convicted and sentenced in the Criminal Court of Baltimore for certain unspecified criminal charges; (3) in June, 1981, the defendants sent certain documents relating to his conviction (the indictment, docket entries, and a “mug” shot) to about 50 union members; (4) the defendants placed appellant under surveillance; and (5) on three occasions, in August and October, 1981, and in January, 1982, the defendants sent certain reports concerning his marital infidelity to his wife, which ultimately led to a divorce. By various rulings, the court effectively dismissed against all defendants the counts alleging invasion of privacy, interference with appellant’s marriage, and conspiracy ¹⁴² to commit those torts.

It concluded that (1) as appellant’s criminal conviction was a matter of public record, publication of documents relating to it would not constitute a tortious invasion of his privacy, and (2) the alleged interference with his marital relationship was essentially a claim for alienation of affection, which is no longer a tort in Maryland. In addition to those rulings, the court entered summary judgment in favor of 23 of the individual defendants on the remaining counts, concluding as a matter of law from the pleadings, deposition, affidavits, and other papers before it that those defendants had not participated in any conduct that would amount to an intentional infliction of emotional distress on appellant or in a conspiracy to engage in such conduct. Appellant responded in June, 1984, with a second amended declaration that named three of the original defendants —Bethlehem, Harry O’Berry, and Milton Leubecker — and seven new ones: Interstate Bureau of Investigation (Interstate) and its director, Upton A. Skipper; Jerald A. Oppel, an attorney, and his professional association; and MP Industries, Inc. (MP) and two of its officials, James Hamilos and James Markakis. Count One realleged the counts of the earlier declarations charging intentional infliction of emotional distress and conspiracy to commit that tort.

Those alleged torts, as noted, were based on averments that the defendants had sent documents pertaining to appellant’s criminal conviction to certain union officials, that they had placed appellant under surveillance, and that they had sent reports of appellant’s extramarital affair to his wife. The remaining Counts — Two through Five — attempted again to charge invasion of privacy, intentional infliction of emotional distress, and conspiracy, with a somewhat embellished factual basis. The factual underpinning of the new charges was set forth in Count Two. In a nutshell, appellant averred that the circulation to union officials of documents pertaining to ¹⁴³ his criminal conviction, the surveillance, and the publication to his wife of information concerning his extramarital affair were all in retaliation for his efforts to prevent Bethlehem from contracting out to MP certain work that appellant believed was covered by a collective bargaining agreement between Bethlehem and Local 24.

Specifically, he averred that (1) MP conspired with Bethlehem to violate a collective bargaining agreement between Bethlehem and Local 24 by contracting to do work covered by the collective bargaining agreement, (2) as business agent, appellant successfully grieved and recovered a substantial settlement from Bethlehem, (3) “[a]s a result of the aforegoing,” the defendants conspired to cause Interstate and its director, Skipper, to place appellant under surveillance “in all his comings and goings including his function as an authorized Business Agent of the said Local Union, in grievance and contract negotiation and attendance at arbitration and other Union proceedings” and obtained written reports that contained specific statements and accusations of marital infidelity, and (4) the defendants turned those reports over to Bethlehem or its agents “pursuant to a plan between the said Defendants and Bethlehem ... to send the reports anonymously to the Plaintiffs wife.” 1 Nothing was said in Counts Two through Five about the circulation of the criminal conviction documents or, indeed, whether the reports of appellant’s marital infidelity were, in fact, sent to his wife. In January, 1985, the court put an end to the proceeding by (1) dismissing the case entirely as to Bethlehem and its two employees (O’Berry and Leubecker) for lack of subject matter jurisdiction, and (2) dismissing Counts Two through Five as to all other defendants for lack of subject matter jurisdiction and granting summary judgment in their favor on Count One. The lack of subject matter jurisdiction arose ¹⁴⁴ from the court’s conclusion that the conduct attributed to the defendants would, at least arguably, constitute a violation of either § 7 or § 8 of the National Labor Relations Act (NLRA, 29 U.S.C. §§ 157 , 158), and thus fall within the preemptive and exclusive jurisdiction of the National Labor Relations Board (NLRB). The summary judgments entered on Count One reflected the court’s continuing belief that the conduct alleged therein was either not actionable or that there was insufficient admissible evidence to show that the defendants had engaged in the alleged conduct.

This appeal followed, in which appellant challenges those rulings and certain ancillary rulings on discovery matters. I. Subject Matter Jurisdiction As we have observed, all of the tortious conduct charged by appellant arose from three alleged activities: placing appellant under surveillance, circulating documents pertaining to his criminal conviction to members of Local 24, and sending reports of his marital infidelity to his wife. In his deposition testimony taken in connection with the earlier declarations, appellant affirmatively and repeatedly asserted that all of that activity was undertaken in retaliation for his successful challenging of the MP contract and to hinder him in the performance of his duties as a union business agent. The mailings to the union members came at a time when appellant was in a contested campaign for reelection as business agent and were regarded by him as an attempt to influence the election.

His counsel also urged that retaliation was the sole motivation behind the defendants’ alleged conduct. Arguing in opposition to their respective motions, he told the court: “Your Honor remembers from his civil rights experience and his labor experience there is one thing that an employer cannot do, and that is intrude in any way into the collective bargaining and legitimate representation by a labor organization of its employees. And in this case is filled with it. Robert Pemberton, action taken by Bethlehem Steel Company against Pemberton are specific violations of the [Wagner] Act, Taft-Hartley Act, and Labor ¹⁴⁵ Management Relations Action of 1947, which prohibits an employer from interfering with, restraining, coercing employees.

Now, in the exercise of their rights to collectively — or to collectively bargain, what they did was destroy a militant unit official, or attempted to do it, all of it. And I don’t want to get — I’m not going to get into the mailing question, but later all of this was for the purpose of interfering with the employee’s rights to organize and be represented by the members of their own choosing, free from the interference of the employer. This was some violation of a large federal public policy. Its effect was to destroy his home life, the purpose to destroy his home life, and the purpose to interfere with a union election, which of course was the mailing of the mug shots.” Section 7 of the NLRA ( 29 U.S.C. § 157 ) guarantees to employees the right to form, join, or assist labor organizations and to bargain collectively through representatives of their own choosing.

Section 8 of the Act ( 29 U.S.C. § 158 ) makes it an unfair labor practice for an employer to interfere with employees in the exercise of their rights under § 7 or to dominate or interfere with the administration of a labor organization. There can be little doubt, and appellant does not seriously dispute, that the conduct charged to Bethlehem through the alleged acts of its agents could arguably constitute one or more unfair labor practices under § 8. Retaliation or even threats of retaliation for filing a grievance or otherwise engaging in protected activity constitutes a violation of § 8 (Ad Art, Inc. v. NLRB, 645 F.2d 669 (9th Cir.1981); N.L.R.B. v. Lucy Ellen Candy Div. of F & F Lab., Inc., 517 F.2d 551 (7th Cir.1975)), as does the placing of employees and union officials under surveillance (N.L.R.B. v. Chem Fab Corp., 691 F.2d 1252 (8th Cir.1982); N.L.R.B. v. Berger Transfer & Storage Co., 678 F.2d 679 (7th Cir.1982)), and any attempt to interfere in the internal affairs and administration ¹⁴⁶ of a union (Kent Corp., 212 NLRB No. 88 , 87 LRRM 1730 (1974)). NLRA was enacted pursuant to the plenary and exclusive power of Congress to regulate interstate commerce.

To the extent that the broad grant of authority under the Act to the National Labor Relations Board collided with or overlapped State law and procedure, questions of Federal supremacy and preemption necessarily arose. In some areas, Congress made clear certain exceptions to the Board’s jurisdiction. See Vaca v. Sipes, 386 U.S. 171, 179-80 , 87 S.Ct. 903, 910-11 , 17 L.Ed.2d 842 (1967). But in other important areas — and particularly on the question of when, and under what circumstances, the States were free to exercise a concurrent jurisdiction over conduct that fell within the purview of § 7 or § 8 of the Act — Congress gave no clear guidelines.

In San Diego Unions v. Garmon, 359 U.S. 236 , 79 S.Ct. 773 , 3 L.Ed.2d 775 (1959), the Supreme Court acknowledged the need to carry out the Congressional purpose “by giving application to congressional incompletion.” Id., 240 , 79 S.Ct., 776 . Reviewing earlier decisions of the Court, Justice Frankfurter wrote that the concern “has necessarily focused on the nature of the activities which the States have sought to regulate, rather than on the method of regulation adopted.” Thus, he said, “[w]hen the exercise of state power over a particular area of activity threatened interference with the clearly indicated policy of industrial relations, it has been judicially necessary to preclude the States from acting.” Id., 243 , 79 S.Ct., 778 . Though acknowledging that preemption had not been applied where “the activity regulated was a merely peripheral concern of [the Act]” or where it “touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act,” the Court declared that, “[w]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 ¹⁴⁷ unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield.” Id., 243- 44, 79 S.Ct., 778 -79. Recognizing that it is not always clear “whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections,” the Court adopted the view that “[w]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 National Labor Relations Board if the danger of state interference with national policy is to be averted.” Id., 244- 45, 79 S.Ct., 779 (emphasis added).

Articulation of this “arguably subject to” standard was intended to establish a definitive bright-line rule that could be easily applied by the lower courts in judging when and under what circumstances State laws could be enforced in this area, to substitute for the alternative approaches taken by the Court in earlier cases that had proved to be unsatisfactory. See Motor Coach Employees v. Lockridge, 403 U.S. 274, 290-91 , 91 S.Ct. 1909, 1919-20 , 29 L.Ed.2d 473 (1971). But that intention has never been entirely fulfilled. Indeed, the Supreme Court itself has declined to apply it in any sort of rigid fashion, prompting one noted commentator to observe that it “no longer seems to be the all-purpose, uniform rule of easy and consistent applicability which was envisioned at its articulation.” 2 T. Kheel, Labor Law § 9.03[1] (1984).

We can see this almost from the beginning. Although the Garmon Court mentioned that conduct of merely peripheral concern to the Act or that was deeply rooted in local feeling had not previously been regarded as preempted, it gave no indication as to whether, under its new “arguably subject to” rule, such conduct would continue to be subject to State jurisdiction. In subsequent cases, however, the Court made clear that that kind of conduct remained “exempt” from preemption. See Motor Coach Employees v. Lockridge, supra, 403 U.S. at 297 , 91 S.Ct. at ¹⁴⁸ 1923; Farmer v. Carpenters, 430 U.S. 290 , 97 S.Ct. 1056 , 51 L.Ed.2d 338 (1977); Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 , 98 S.Ct. 1745 , 56 L.Ed.2d 209 (1978); see also Vane v. Nocella, 303 Md. 362, 372 , 494 A.2d 181 (1985), where the Court of Appeals referred to the “ ‘peripheral concern’ exception” and the “ ‘deeply rooted in local feeling’ exception” to the Garmon preemption rule. 2 In Operating Engineers v. Jones, 460 U.S. 669, 676 , 103 S.Ct. 1453, 1458 , 75 L.Ed.2d 368 (1983), the Court explained: “Our approach to the pre-emption issue has thus been stated and restated.

First, we determine whether the conduct that the State seeks to regulate or to make the basis of liability is actually or arguably protected or prohibited by the NLRA. Garmon, supra, [359 U.S.] at 245 [ 79 S.Ct. at 779 ]; see Sears, supra [436 U.S.] at 187-190 [ 98 S.Ct. at 1752-1754 ]. Although the ‘Garmon guidelines [are not to be applied] in a literal, mechanical fashion,’ Sears, supra [436 U.S.] at 188 [ 98 S.Ct. at 1752 ], if the conduct at issue is arguably prohibited or protected otherwise applicable state law and procedures are ordinarily pre-empted. Farmer, supra, at 296 .

When, however, the conduct at issue is only a peripheral concern of the Act or touches on interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, it could not be inferred that Congress intended to deprive the State of the power to act, we refuse to invalidate state regulation or sanction of the conduct. Garmon, supra [359 U.S.] at 243-244 [ 79 S.Ct. at 778-779 ]. The question of whether regulation should be allowed because of the deeply rooted nature of the local interest involves a sensitive balancing of any ¹⁴⁹ harm to the regulatory scheme established by Congress, either in terms of negating the Board’s exclusive jurisdiction or in terms of conflicting substantive rules, and the importance of the asserted cause of action to the State as a protection to its citizens. See Sears, supra [436 U.S.] at 188-189 [ 98 S.Ct. at 1752-1753 ]; Farmer, supra [430 U.S.] at 297 [ 97 S.Ct. at 1061 ].” Although these “exemptions” have been considered in a variety of contexts, they have a particular significance in cases like the one now before us — tort claims based on State law that arise from conduct arguably prohibited under NLRA, § 8. 3 What the Supreme Court seems actually to have done in such cases, despite the sometimes varying language used to explain or justify it, is to look at the complaint and the nature of the relief sought under State law, determine the extent of the NLRB’s statutory interest in the type of conduct underlying the complaint, and, to the extent of any lack of NLRB interest in that type of conduct, examine the legitimate interest of the State in regulating that conduct.

An early example of that kind of analysis was Linn v. Plant Guard Workers, 383 U.S. 53, 55 , 86 S.Ct. 657, 659 , 15 L.Ed.2d 582 (1966), where the Court concluded that “where either party to a labor dispute circulates false and defamatory statements during a union organizing campaign, [a] court does have jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice and injured him.” Speaking for the Court, Justice Clark observed that: “The malicious publication of libelous statements does not in and of itself constitute an unfair labor practice. While the Board might find that an employer or union violated ¹⁵⁰ § 8 by deliberately making false statements, or that the issuance of malicious statements during an organizing campaign had such a profound effect on the election as to require that it be set aside, it looks only to the coercive or misleading nature of the statements rather than their defamatory quality. The injury that the statement might cause to an individual’s reputation — whether he be an employer or union official — has no relevance to the Board’s function---- The Board can award no damages, impose no penalty, or give any other relief to the defamed individual.” Id., 63, 86 S.Ct., 663 (citation omitted). In contrast, the Court continued, State remedies are designed to afford relief to the defamed individual.

Thus: “[t]he Board’s lack of concern with the ‘personal’ injury caused by malicious libel, together with its inability to provide redress to the maligned party, vitiates the ordinary arguments for preemption.” Id., 64 , 86 S.Ct., 664 . 4 The Supreme Court reached a similar conclusion 11 years later in connection with another intentional tort — one of those at issue here, intentional infliction of emotional distress. In Farmer v. Carpenters, supra, 430 U.S. 290 , 97 S.Ct. 1056 , the Court considered a State court action filed by an employee against his union. In a four-count complaint, the employee alleged that as a result of his dissidence as to certain union policies, “he was subjected to a campaign of personal abuse and harassment in addition to continued discrimination in referrals from the hiring hall.” Id., 292, 97 S.Ct. 1059 . Count Two alleged that the union engaged in “outrageous conduct, threats, and intimidation” which caused the complainant grievous emotional distress resulting in bodily injury.

Id., 293 , 97 S.Ct., 1059 . ¹⁵¹ The trial court rejected the union’s preemption argument and allowed the case to go to a jury. It refused, however, an instruction that the jury could not consider evidence regarding discrimination with respect to employment opportunities or hiring procedures. The State appellate court reversed the money judgment entered in favor of the employee on the ground of preemption. The Supreme Court acknowledged that, in the context of the employee’s other allegations of discrimination in hiring hall referrals, his allegations in Count Two of tortious conduct “might form the basis for unfair labor practice charges before the [NLRB]” and that “[o]n this basis a rigid application of the Garmon doctrine might support the conclusion of the California courts that [the employee’s] entire action was preempted by federal law.” Id., 302 , 97 S.Ct., 1064 .

But, it continued, that doctrine has not been inflexibly applied. With respect to the claims of intentional infliction of emotional distress, “we cannot conclude that Congress intended exclusive jurisdiction to lie in the Board.” Id. Citing Linn, supra, 383 U.S. 53 , 86 S.Ct. 657 , and applying essentially the same analysis, the Court held that no provision of NLRA protected the kind of “outrageous conduct” complained of in the second count, and that “[Regardless of whether the operation of the hiring hall was lawful or unlawful under federal statutes, there is no federal protection for conduct on the part of union officers which is so outrageous that ‘no reasonable man in a civilized society should be expected to endure it.’ ” Id. On the other hand, said the Court, the State does have a substantial interest in protecting its citizens from that kind of abuse.

That interest, the Court concluded, “is no less worthy of recognition” than the State’s interest in protecting against physical injury or damage to reputation, exempted from the preemption doctrine, respectively, in Automobile Workers v. Russell, 356 U.S. 634 , 78 S.Ct. 932 , 2 L.Ed.2d 1030 (1958), and Linn . ¹⁵² As in Linn , the Court declined to apply the preemption doctrine generally, but instead surgically excised from the scope of permitted State jurisdiction only that conduct presenting “a realistic threat of interference with the federal regulatory scheme.” 430 U.S. at 305 , 97 S.Ct. at 1066 . In Farmer , that had to do with the charge of discrimination in the hiring hall. That kind of activity was within the exclusive purview of the NLRB and could not be dealt with under State law. Because of the trial court’s refusal to withdraw that element from the jury’s consideration and the “consequent risk that the jury verdict represented damages for employment discrimination rather than for instances of intentional infliction of emotional distress,” the Court could not simply reinstate the trial court judgment but, in effect, remanded the case for new trial.

Id, 306, 97 S.Ct., 1066 . The preemption doctrine was reviewed again a year later in Sears, Roebuck & Co. v. Carpenters, supra, 436 U.S. 180 , 98 S.Ct. 1745 , the issue there being whether a State was precluded from enforcing its trespass law by enjoining picketing on company property; the precise relief sought was to remove the pickets from company property to adjoining public walkways. The California appellate court vacated an injunction to that effect, concluding that because the picketing was both arguably protected under NLRA, § 7 and arguably prohibited under § 8 of that Act, State jurisdiction was preempted. Id., 182-84, 98 S.Ct. 1749 .

Reviewing again some of its earlier decisions, the Supreme Court observed that different considerations had been applied in deciding whether State action was preempted, depending on whether the conduct in question was arguably protected or arguably prohibited under NLRA. Id., 190 , 98 S.Ct., 1754 . Although in both instances, the paramount factor is the NLRB’s “primary jurisdiction,” that jurisdiction is more significant in terms of protected activity because of the greater implication of Federal supremacy. Id., 200 , 98 S.Ct., 1759 . ¹⁵³ Where the conduct at issue is arguably prohibited, the Court said that it has looked to whether there is a significant State interest in protecting the complainant from the conduct and, notwithstanding that the conduct “occurred in the course of a labor dispute and an unfair labor practice charge could have been filed,” Id., 196 , 98 S.Ct., 1757 , whether the exercise of State jurisdiction entails a risk of interference with the regulatory jurisdiction of the NLRB.

In that context, the Court held, at 197, 98 S.Ct. at 1757 : “The critical inquiry, therefore, is not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to (as in Garner [v. Teamsters Union, 346 U.S. 485 , 74 S.Ct. 161 , 98 L.Ed. 228 (1953)]) or different from (as in Farmer) that which could have been, but was not, presented to the Labor Board. For it is only in the former situation that a state court’s exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garmon doctrine was designed to avoid.” (Emphasis added.) Using that standard, the Court decided that preemption was inappropriate in the case before it. The NLRB would be concerned only with the motivation for the picketing, not its location, and therefore would not have to determine whether there had been a trespass. The State court, however, was concerned only with the question of trespass — the location of the picketing.

Id., 198, 98 S.Ct., 1758 . Where, on the other hand, the conduct is arguably protected, concurrent jurisdiction becomes more of a problem. Id., 209-10 , 98 S.Ct., 1763 -64. In the particular case, the Court noted, there indeed existed a “potential overlap between the controversy presented to the state court and that which the Union might have brought before the NLRB,” concerning “an accommodation of Sears’ property rights and the Union’s § 7 rights.” 436 U.S. at 200-01 , 98 S.Ct. at ¹⁵⁴ 1759.

But, the Court continued, “[t]he primary-jurisdiction rationale justifies preemption only in situations in which an aggrieved party has a reasonable opportunity either to invoke the Board’s jurisdiction himself or else to induce his adversary to do so.” Id., 201 , 98 S.Ct., 1759 . In that case, the Court said, Sears was unable to do either and therefore was not precluded from resorting to State court. Id., 201-02 , 98 S.Ct. 1759 -60. The Supreme Court has revisited the preemption area a number of times since Sears, but, in terms of what is before us here, it has offered up nothing new.

In Operating Engineers v. Jones, 460 U.S. 669 , 103 S.Ct. 1453 , 75 L.Ed.2d 368 (1983), the Court reaffirmed its earlier decision in Iron Workers v. Perko, 373 U.S. 701 , 83 S.Ct. 1429 , 10 L.Ed.2d 646 (1963), that an action by a company employee against a union for procuring his discharge, and thus tortiously interfering with his employment contract, was preempted. In contrast to the situation in Sears, the Court held that Jones’s complaint was fully within the jurisdiction of the NLRB and could have been presented to that Board. See also Vane v. Nocella, supra, 303 Md. 362 , 494 A.2d 181 . In Belknap, Inc. v. Hale, 463 U.S. 491 , 103 S.Ct. 3172 , 77 L.Ed.2d 798 (1983), the Court refused to preempt a State court action for breach of contract and misrepresentation filed against an employer by some of its former employees.

The complainants alleged that they had been hired to replace striking workers and had been promised “permanent” employment, but that they were discharged when the strike ended to make room for the reinstated strikers. The Court acknowledged that the issue of whether the employer was obliged to reinstate the striking workers and whether its promise of permanent employment to the replacement workers was forbidden were squarely within the jurisdiction of the NLRB, but, in light of Linn and Farmer , concluded ¹⁵⁵ that that did not require preemption. 5 The Board’s focus, it said, would be on the rights of the striking workers, not on whether Belknap deceived the replacements. Thus, while the State had a substantial interest in protecting its citizens from misrepresentation, the State action would be of no more than peripheral concern to the Board. Id., 510-11 , 103 S.Ct. 3183 .

Because the conduct forming the basis of appellant’s complaint is not arguably protected under NLRA, § 7, but is arguably prohibited under § 8, we apply the standard for arguably prohibited conduct set forth in Sears, namely, whether the controversy presented to the Circuit Court “is identical to ... that which could have been, but was not, presented to the Labor Board.” Id., 197, 98 S.Ct., 1757 . See United Credit Bur. of America, Inc. v. N.L.R.B., 643 F.2d 1017, 1025 (4th Cir.), cert. denied 454 U.S. 994 , 102 S.Ct. 539 , 70 L.Ed.2d 404 (1981). In applying that standard, however, we look not just at whether the conduct at issue would constitute an unfair labor practice. As noted, the conduct at issue in Linn, Farmer, and Belknap would arguably have constituted one or more unfair labor practices.

Rather, we look to the second amended declaration to see if there is something of substance pled there that extends beyond an arguable unfair labor practice — something in or arising from the conduct that would be of merely “peripheral concern” to the NLRB but of significant interest to the State. We think there is. ¹⁵⁶ The NLRB might well take an interest in Bethlehem’s alleged attempt to dominate Local 24’s internal activities, or to undermine appellant’s effectiveness as a union representative, or to retaliate against him, either as an employee or as a union representative, for vigorous enforcement of a collective bargaining agreement. All of that is within the competence and primary jurisdiction of the Board. But, as in Linn, Farmer, and Belknap, we do not see that the Board would have any statutory concern as to whether, as an ancillary matter, that conduct, designed to achieve those results, was sufficiently egregious and damaging to appellant personally to constitute the torts of intentional infliction of emotional distress or invasion of privacy.

The same evidence that might justify the NLRB in finding an unfair labor practice might not suffice to establish either one or both of those torts. In that sense, appellant’s claim in this proceeding is a function of the manner in which the conduct was exercised rather than a function of the conduct itself, and that is not preempted. See Farmer; also Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir.1984), cert. denied — U.S. —, 105 S.Ct. 2319 , 85 L.Ed.2d 839 (1985); Gulati v. Burlington Northern R. Co., 364 N.W.2d 446 (Minn.App.1985) (action under