United Food & Commercial Workers International Union v. Wal-Mart Stores, Inc.

EYLER, DEBORAH S., J. The primary issue in this case is whether an employer’s state law claims for trespass and private and public nuisance asserted in a Maryland court against a union that does not represent its employees, who are not unionized, is preempted by the National Labor Relations Act, 29 U.S.C. § 151-167 . We hold that they are not. The appellants are the United Food and Commercial Workers International Union (“the UFCW”), its subsidiary, the Organization United for Respect at Walmart (“OURWalmart”), and related people and organizations (collectively “the Union”). 1 The appellees are Walmart Stores, Inc., and its affiliated companies, WalMart Stores East, LP, and Sam’s East, Inc. (collectively “Walmart”). In the Circuit Court for Anne Arundel County, Walmart sued the Union for trespass and public and private nuisance, seeking declaratory and injunctive relief and nominal damages.

The court granted a preliminary injunction; denied the Union’s motion to dismiss for lack of subject matter jurisdiction; and granted summary judgment in favor of Walmart, entering a permanent injunction. In this appeal, the Union presents five questions for review, which we have consolidated, rephrased, and reordered as follows: I. Did the circuit court err by denying its motion to dismiss Walmart’s claims for lack of subject matter jurisdiction?

II

Did the circuit court err by denying its motion to dismiss Walmart’s public nuisance claim for lack of standing? ²¹⁰ III. Did the circuit court abuse its discretion in fashioning the scope of its permanent injunction?

IV

Did the circuit court err by ruling that this controversy is not a “labor dispute” and/or by finding that Walmart satisfied the heightened requirements of the Anti-Injunction Act? [ 2 ] Finding no error, we shall affirm the judgment. FACTS AND PROCEEDINGS The UFCW is a labor union that represents grocery, retail, meatpacking, and food processing workers. Beginning in 2011, the Union held a number of demonstrations at Walmart stores in 13 states, including Maryland. 3 Walmart employees are not unionized. The Union demonstrations in Maryland took place between July 16, 2011, and September 5, 2013, at Walmart stores in Laurel, Landover Hills, Bowie, Hanover, Arbutus, Severn, and Germantown.

Most were carried out inside the stores, with some being held on adjacent parking areas that were owned or leased by Walmart, and one being held on a nearby public ²¹¹ road. The demonstrations were organized like “flash mobs,” meaning that demonstrators were summoned by social media or mobile phone communications to quickly gather at a store. The demonstrators showed up en masse, “crashing” the store in a coordinated effort. They marched through the store vestibule and aisles, chanting, singing, blowing whistles, shouting into bullhorns and megaphones, and littering the store with flyers.

Some of the demonstrations were small, lasting only 15 to 20 minutes. Others were large, with upwards of 100 or more demonstrators, and lasting over an hour. In many of the in-store events, the demonstrators interfered with customers by blocking access to the cash registers and the restrooms. During a demonstration in the Laurel Walmart on July 16, 2011, for example, 40 demonstrators wearing “OURWalmart” tee-shirts formed a human chain stretching from the first to the last checkout counter.

The demonstrators also blocked ingress and egress to parking lots, parking spaces, and store entrances. In May of 2012, demonstrators at the Bowie Walmart parked a large van emblazoned with OURWalmart logos in the parking lot. They played OURWalmart videos on a television screen mounted on the van, piped music through speakers, and solicited customers and employees as they passed by. In some instances, demonstrators inside stores interrupted Walmart management meetings, forcing themselves into the meeting rooms and videotaping the managers’ efforts to get them to leave.

In all the demonstrations, Walmart managers repeatedly told the demonstrators to leave Walmart’s property, but they refused. Ultimately, they were removed by the police. Walmart’s lawyers sent cease and desist letters to counsel for the UFCW in October of 2011, October of 2012, November of 2012, and April of 2013, to no avail. In March of 2013, Walmart filed an unfair labor practice (“ULP”) charge against the UFCW and OURWalmart, with the National Labor Relations Board (“NLRB”).

It alleged that the UFCW had violated section 8(b)(1)(A) of the NLRA “by planning, orchestrating, and conducting a series of unau ²¹² thorized and blatantly trespassory in-store mass demonstrations” by which it “restrained and coerced [Walmart] employees” in the exercise of their right to refrain from unionizing. 4 It attached a summary of 70 “events” the Union had held at Walmart stores in thirteen states, including twelve in Maryland. The allegations in the ULP charge all pertained to instances when demonstrators confronted Walmart managers or employees directly, using “in your face” tactics in an effort to intimidate them into supporting the Union. Instances during the demonstrations that did not include such coercive activities were not included in the ULP charge. Walmart amended its ULP charge in May of 2013, narrowing its scope to several events at a few stores around the country.

The amended ULP charge did not include any events at Walmart stores in Maryland. On September 20, 2013, Walmart filed the lawsuit that gives rise to this appeal. 5 In a first amended complaint (“FAC”), filed on October 2, 2013, it alleged that the Union had violated Maryland law “through coordinated, statewide acts of trespass,” including by conducting “in-store ‘flash mobs’ ” and by blocking “ingress and egress to parking lots, parking spaces, vehicular traffic, and store entrances.” The FAC recited detailed allegations about more than 15 demonstrations at the seven Maryland Walmart stores we have named. As noted, Walmart set forth claims for trespass and public and private nuisance, and sought nominal damages, a permanent injunction, and declaratory relief. On October 10, 2013, Walmart filed a motion for preliminary injunction.

The court held an evidentiary hearing and granted the motion. Its order, entered on November 26, 2013, enjoined the Union from entering Walmart’s property in Maryland “for any purpose other than shopping for and/or pur ²¹³ chasing merchandise”; from “engaging] in activities such as unlawful picketing, patrolling, parading, demonstrations, ‘flash mobs,’ handbilling, solicitation, customer interference, and manager confrontations”; and from “engaging in any nuisance conduct off Walmart’s private property ... which blocks, causes to be blocked, disrupts and/or interferes” with access by consumers or employees to the property. 6 In the meantime, on October 11, 2013, the Union filed a motion to dismiss the FAC for lack of subject matter jurisdiction, arguing that Walmart’s claims were preempted by the NLRA. Walmart opposed the motion. The court held a hearing, at the conclusion of which it ruled that Walmart’s claims were not preempted by the NLRA.

It entered an order denying the motion on November 26,2013. On August 19, 2014, after extensive discovery, Walmart and the Union filed cross-motions for summary judgment. At a hearing on March 3, 2015, the court denied the Union’s motion and granted Walmart’s motion. It issued a memorandum opinion and order to that effect, which was docketed on March 16, 2015.

Also on that day, the court entered a permanent injunction, prohibiting the Union and its agents or associates from: 1. Entering on Walmart’s private property in the State of Maryland to engage in activities such as picketing, patrolling, parading, demonstrations, chanting, “flash mobs,” handbilling, solicitation, customer disruptions, manager delegations or confrontations, or associate engagement for a non-shopping purpose; 2. Entering on Walmart’s private property in the State of Maryland without permission for any purpose other than ²¹⁴ shopping for and/or purchasing merchandise at Walmart’s stores; 3. Interfering with, obstructing or blocking Walmart’s and its customers’ access to, and use of, easements and/or right-of-ways granted by Walmart across or upon apron sidewalks and parking lots adjacent to stores for which Walmart has a “building only” lease; and 4.

Engaging in any nuisance conduct off Walmart’s private property which disrupts and/or interferes with Walmart customers’ or associates’ access to, or ability to move around or exit, Walmart private property in the State of Maryland[.] The permanent injunction defined “Walmart’s private property” to mean the interior of its stores and other facilities in Maryland and the “apron sidewalks, parking lots, and other areas on any parcel of property in Maryland that Walmart controls as owner or lessee.” DISCUSSION I. Preemption (a) The Supremacy Clause of the United States Constitution, Article VI, Clause 2, makes a properly enacted federal law “the supreme Law of the Land.” Whether such a law preempts state law “fundamentally is a question of congressional intent.” English v. Gen. Elec. Co., 496 U.S. 72, 78-79 , 110 S.Ct. 2270 , 110 L.Ed.2d 65 (1990). State law may be preempted by federal law expressly, when Congress so states, or impliedly, either when Congress regulates a field so as to evidence its intent that it be occupied exclusively by federal law, or when federal law conflicts with state law.

Law v. Int’l Union of Operating Eng’rs Local No. 37, 373 Md. 459, 466-67 , 818 A.2d 1136 (2003). The NLRA, enacted in 1935, and amended and expanded in 1947, by the Labor Management Relations Act, implemented a ²¹⁵ new federal policy legitimizing “labor unionization and encouraging the practice of collective bargaining.” Sears, Roebuck & Co. v. San Diego Cty. District Council, 436 U.S. 180, 190 , 98 S.Ct. 1745 , 56 L.Ed.2d 209 (1978). It established a body of law governing labor relations and, in order “to achieve uniform as well as effective enforcement of the national labor policy,” created the NLRB, an administrative agency vested with the power to implement the law.

Vane v. Nocella, 303 Md. 362, 367 , 494 A.2d 181 (1985). The NLRB’s jurisdiction encompasses activities regulated by sections 7 and 8 of the NLRA. See Law, 373 Md. at 468 [ 818 A.2d 1136 ]. Section 7 affords employees organizational rights, including the right to unionize and the right not to organize. 7 Section 8 establishes what constitutes unfair labor practices.

As relevant here, section 8(b)(1)(A) makes it an unfair labor practice for a “labor organization or its agents to ... restrain or coerce ... employees in the exercise of the rights guaranteed in [section 7 of the NLRA].” 29 U.S.C. § 158 (b)(1). “In enacting the NLRA, Congress never determined the precise extent to which state law must be displaced to achieve the unifying ends sought by the national legislature.” Vane, at 368, 494 A.2d 181 . Because Congress was silent, it has been left to the courts to ascertain the extent to which the NLRA preempts state common and statutory law, and other federal laws. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 240 , 79 S.Ct. 773 , 3 L.Ed.2d 775 (1959) (“the aims and social policy of [the NLRA] were drawn with ²¹⁶ broad strokes while the details had to be filled in ... by the judicial process”).

Garmon is the seminal case about federal preemption of state law claims that are based on conduct regulated by sections 7 and 8 of the NLRA. 8 There, members of several unions that had negotiated unsuccessfully with Garmon to employ only union members peacefully picketed Garmon’s place of business. 9 Garmon filed a ULP charge against the unions with the NLRB and also filed suit against the unions in state court, for statutory injunctive relief and tort damages. The NLRB declined jurisdiction, likely because “the amount of interstate commerce involved did not meet the [NLRB’s] monetary standards in taking jurisdiction.” Id. at 238 , 79 S.Ct. 773 . The state court declined to grant an injunction, because its injunction statute conflicted with the NLRA, but ruled that the picketing was an unfair labor practice, under section 8 of the NLRA, and awarded Garmon tort damages, under state law. The case reached the United States Supreme Court, which held that the state law tort claim was preempted by the NLRA.

The essence of the issue before the Court was which body, a court (state or federal) or the NLRB, was to decide whether an ULP had been committed. The Court explained that, “When an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the [NLRB] if the danger of state ²¹⁷ interference with national policy is to be averted.” Id. at 245, 79 S.Ct. 773 (emphasis added). The Court concluded that, because the unions’ conduct was “arguably within the compass of § 7 or § 8 of the [NLRA], the State’s jurisdiction [wa]s displaced.” Id. at 246, 79 S.Ct. 773 . It recognized two exceptions from preemption, however.

First, when the conduct the state is regulating or sanctioning “touch[es] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we c[an] not infer that Congress ha[s] deprived the States of the power to act” (“local interest exception”); and second, when the activity is “a merely peripheral concern of the [NLRA].” Id. at 243-44 , 79 S.Ct. 773 . Nearly twenty years later, in Sears, Roebuck & Co. v. San Diego District Council, 436 U.S. at 180 , 98 S.Ct. 1745 , the Supreme Court addressed whether an employer’s state law trespass claim was preempted by the NLRA, under the principle articulated in Garmon . In protest over Sears’s employing non-union carpenters, members of a local carpenters union engaged in peaceful picketing on Sears’s privately owned walkways and parking lot. When the union members would not heed Sears’s demand to leave its property, Sears sued the union in state court, “seeking an injunction [under state law] against the continuing trespass.” Id. at 183, 98 S.Ct. 1745 .

The court issued a preliminary injunction, and the union appealed. The California Court of Appeals affirmed, but the Supreme Court of California reversed, holding that because “the picketing was both arguably protected by § 7 and arguably prohibited by § 8 [of the NLRA] ... state court jurisdiction was pre-empted under the Garmon guidelines.” Id. at 184, 98 S.Ct. 1745 . The Supreme Court granted a writ of certiorari to decide “whether, or under what circumstances, a state court has power to enforce local trespass laws against a union’s peaceful picketing.” Id. at 184 , 98 S.Ct. 1745 (footnote omitted). It reversed, upholding the injunction against the union’s continuing trespass.

Observing that Garmon’s “arguably prohibit ²¹⁸ ed” and “arguably protected” formulations are not to be applied in a “literal, mechanical fashion,” it explained that whether they apply “ ‘must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies’ of permitting the state court to proceed.” Id. at 188-89 , 98 S.Ct. 1745 (quoting Vaca v. Sipes, 386 U.S. 171, 180 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967)). Although, ordinarily, state courts lack jurisdiction to redress conduct that is arguably prohibited by section 8 or arguably protected by section 7, they nevertheless may “enforce certain laws of general applicability even though aspects of the challenged conduct” are arguably prohibited by section 8 or protected by section 7. Id. at 194-95 , 98 S.Ct. 1745 . In particular, as it observed in Garmon , state courts retain jurisdiction to regulate and sanction “conduct that touches ‘interests ... deeply rooted in local feeling and responsibility[,]’ ” ie., when the local interest exception applies.

Id. at 195, 98 S.Ct. 1745 (quoting Garmon, 359 U.S. at 244 , 79 S.Ct. 773 ). The Court explained that because the purpose of preemption under the “arguably prohibited” (section 8) prong of Garmon is to ensure that state courts will not interfere with the NLRB’s jurisdiction to decide controversies committed to it, the “critical inquiry” in deciding whether a state claim is preempted is “whether the controversy presented to the state court is identical to ... that which could have been, but was not, presented to the [NLRB].” Id. at 197, 98 S.Ct. 1745 . When the controversy is not identical, the risk is slight that a state court’s exercise of jurisdiction over it will interfere “with the unfair labor practice jurisdiction of the [NLRB,]” and the state law claim is not preempted. Id.

The Sears Court recognized that the union members’ picketing on Sears’s property was a continuing trespass under state law and also was conduct “arguably prohibited” by section 8 of the NLRA, either as “recognitional picketing,” in violation of section 8(b)(7)(c), or as “work reassignment,” in ²¹⁹ violation of section 8(b)(4)(D). 10 Because the crux of these violations is the union’s aim in engaging in the conduct, if Sears had filed ULP charges, the NLRB’s “concern would have been limited to the question whether the [u]nion’s picketing had an objective proscribed by the [NLRA].” Id. at 186 , 98 S.Ct. 1745 . Its decision would involve “complex factual and legal determinations [about objectives] completely unrelated to the simple question whether a trespass had occurred.” Id. at 198 (emphasis added) (footnote omitted). “[T]he location of the picketing would have been irrelevant” to that determination. Id. at 186 , 98 S.Ct. 1745 . The Court concluded that, in the conflict between Sears and the union, the “controversy which Sears might have presented to the [NLRB was] not the same as the controversy presented to the state court.” Id. at 198 , 98 S.Ct. 1745 .

In that circumstance, state court adjudication of the trespass claim would “create no realistic risk of interference with the [NLRB’s] primary jurisdiction to enforce the statutory prohibition against unfair labor practices.” Id. at 198 , 98 S.Ct. 1745 . Accordingly, the state law trespass claim was not preempted under the “arguably prohibited” prong of the Garmon formulation. Id. 11 ²²⁰ (b) In this appeal, the Union contends Walmart’s state law claims for trespass and public and private nuisance are preempted by the NLRA because they are being advanced to redress conduct that is “arguably prohibited” by section 8(b)(1)(A) of the NLRA. It asserts that Walmart conceded as much by first filing its ULP charge.

It argues that the local interest exception does not apply because it is limited to conduct that is violent, threatening, or malicious, and the conduct of the demonstrators did not fit that bill. And, even if the exception is not so limited, it still does not apply because the legal controversies in Walmart’s ULP charge and in its state law claims are identical, or, as the Union puts it, “fundamentally the same” because they are based on the same facts. The Union maintains, moreover, that the NLRB could have granted Walmart the same remedy it obtained from the circuit court. The Union argues that Sears is distinguishable because in the case at bar the trespass and nuisance claims concern the location and the nature of the demonstrators’ activities, not just their location.

Walmart responds that trespassing and nuisance are not, in and of themselves, conduct that is “arguably prohibited” by section 8 of the NLRA. And, even if some of the Union’s conduct during the demonstrations was arguably prohibited by section 8 (namely actions directed at employees in an effort to coerce them into unionizing), the local interest exception applies because the State has a fundamental interest in protecting the safety and property rights of its citizens and the legal controversy in the coercive conduct ULP charge was not identical to the legal controversy in the state law claims. It ²²¹ maintains that factual overlap does not make controversies identical. The Union is wrong, Walmart argues, that the local interest exception only applies to conduct that is violent, threatening, or malicious, and also is wrong that the NLRB has jurisdiction to enjoin trespassing on an employer’s property.

Walmart maintains that, as in Sears, the location of the arguably prohibited conduct was not important to its initial ULP charge, but was essential to the trespass and nuisance claims. It argues that its state law claims are not preempted because their adjudication does not create any meaningful risk of interference with the NLRB’s primary jurisdiction. 12 (c) Whether state claims are preempted by the NLRA is a question of law that we decide de novo. See CSX Transp., Inc. v. Pitts, 430 Md. 431 , 450 n. 10, 61 A.3d 767 (2013) (federal preclusion ordinarily is a question of law). Our preemption analysis begins with whether the Union’s conduct that forms the basis for Walmart’s state law claims is “arguably prohibited” by section 8 of the NLRB.

The short answer to this question is that some of the conduct, in particular the confrontational acts by the demonstrators against managers and other employees, was arguably prohibited by section 8, as activities by a labor union to coerce employees to refrain from exercising their right not to unionize. ²²² There is no basis for the Union’s argument, however, that, by filing its initial ULP charge, Walmart conceded that all aspects of the demonstrators’ conduct, including conduct constituting trespass or nuisance, is “arguably prohibited” by section 8(b)(1)(A), so that a state law claim for trespass or nuisance necessarily is preempted by the NLRA. The Sears case is dispositive on this point. The Court recognized that the picketing on Sears’s private property by union members could have been the basis for ULP charges and also was a trespass under state law; and the fact that Sears could have brought ULP charges did not mean the trespass could not be remedied under state law. This same reasoning applies when a ULP charge actually is filed.

Nothing in the Supreme Court’s analysis in Sears suggests that had Sears brought ULP charges for recognitional picketing or work reassignment, its doing so would have amounted to a concession that every aspect of its controversy with the unions was within the sole jurisdiction of the NLRB to decide so that its trespass claim was preempted. Because at least some of the Union’s conduct was arguably prohibited by section 8 of the NLRA, one begins with the presumption, under Garmon , that Walmart’s trespass and nuisance claims are preempted by federal law. If the local interest exception applies, the presumption is rebutted. 13 Whether that exception applies is a two-part inquiry. We first “determine whether a significant state interest exists in protecting the citizen from the challenged conduct.” Vane, 303 Md. at 373 , 494 A.2d 181 .

If there is no such interest, the exception does not apply. If there is, we then decide “whether the exercise of state jurisdiction entails ‘little risk of interference with the regulatory jurisdiction of the [NLRB].’ ” Id. (quoting Sears, 436 U.S. at 196 , 98 S.Ct. 1745 ). In the first prong of the inquiry, we find no merit in the Union’s argument that the local interest exception does not ²²³ apply here because the only significant state interest that -will support application of that exception is the interest in protecting citizens from conduct that is violent, threatening, or malicious, and there was no such conduct here.

To be sure, by the time the Supreme Court decided Sears in 1978, it had found the exception to apply when the arguably prohibited union conduct was violent, see United Auto. Aircraft Workers of Am. v. Wisconsin Emp’t Relations Bd., 351 U.S. 266 , 76 S.Ct. 794 , 100 L.Ed. 1162 (1956); was calculated to provoke violence and was likely to do so unless restrained, see Youngdahl v. Rainfair, Inc., 355 U.S. 131 , 78 S.Ct. 206 , 2 L.Ed.2d 151 (1957); and when the conduct satisfied the elements of state law claims for defamation, see Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53 , 86 S.Ct. 657 , 15 L.Ed.2d 582 (1966), intentional infliction of emotional distress, see Farmer v. United Bhd. of Carpenters of Am., 430 U.S. 290 , 97 S.Ct. 1056 , 51 L.Ed.2d 338 (1977), or malicious interference with lawful occupation, see Int’l Union, United Auto. Workers v. Russell, 356 U.S. 634 , 78 S.Ct. 932 , 2 L.Ed.2d 1030 (1958). The holding in Sears makes plain, however, that the local interest exception can apply not only to state claims brought to protect citizens from violence or likely violence, or from harm caused by torts with a component of malice, but also to state claims advanced to protect against harm to possessory rights in private property, in the absence of violence, threats of violence, imminent violence, or malicious acts.

The picketing in Sears was peaceful and non-confrontational, and Sears’s trespass claim was brought solely to remove the protesters from its private property. Even before Sears was decided, Chief Justice Burger observed, in his concurring opinion in Taggart v. Weinacker’s Inc., 397 U.S. 223 , 90 S.Ct. 876 , 25 L.Ed.2d 240 (1970), that [t]he protection of private property, whether a home, factory, or store, through trespass laws is historically a concern of state law. Congress has never undertaken to alter this allocation of power, and has provided no remedy to an employer within the [NLRAJ to prevent illegal trespasses on his premises____ ²²⁴ Nothing in [Garmon ] would warrant this Court to declare state-law trespass remedies to be ineffective and thus to remit to a person his own self-help resources if he desires redress for illegal trespassory picketing. Garmon left to the States the power to regulate any matter of “peripheral concern” to the NLRA or that conduct that touches interests “deeply rooted in local feeling and responsibility.” [ 359 U.S. at 243 , 79 S.Ct. 773 ].

New concepts are more “deeply rooted” than the power of a State to protect the rights of its citizens. Id. at 227-28, 90 S.Ct. 876 (emphasis added) (footnote omitted). 14 Thus, a state’s power to regulate and sanction, by civil actions for trespass and nuisance, conduct that violates or interferes with the private property rights of its citizens is deeply rooted in local feeling and responsibility. Cf. Prof'l Staff Nurses Ass’n v. Dimensions Health Corp., 110 Md.App. 270, 298-99 , 677 A.2d 87 (1996) (noting in dicta that claims for trespass and nuisance, or claims premised on violence or threats of violence, are “deeply rooted” in local feeling); see also Helmsley-Spear, Inc. v. Fishman, 11 N.Y.3d 470 , 872 N.Y.S.2d 383 , 900 N.E.2d 934, 938 (2008) (holding that “[t]he tort of private nuisance, much like the tort of trespass, has historically been governed by state law.

It cannot be said that Congress, by enacting the NLRA, intended to preempt states from protecting their citizens from obnoxious conduct”). Even if the Union’s argument about the limitation of the local interest exception had some validity, which it does not, the potential for violence always exists when non-employee union members trespass on an employer’s private property and create a nuisance that interferes with the employer’s use and enjoyment of its property. In such a situation, if the state, by means of its police force, does not intervene when the protesting union members refuse to leave the employer’s private property, the employer has “no alternative but to forcefully remove the [demonstrators]. We cannot know the ²²⁵ amount of force that would have been necessary to remove them, but the threat of violence in such a situation is imminent.” Hood v. Stafford, 213 Tenn. 684 , 378 S.W.2d 766, 770 (1964) (cited with approval in Sears, 436 U.S. at 185 n. 7, 98 S.Ct. 1745 ); see also Lawson Milk Co. v. Retail Clerks Union Local 698, 59 Ohio App.2d 207 , 394 N.E.2d 312, 316 (1977) (state trespass action by business owner against non-employee union members was not preempted by NLRA notwithstanding stipulation that there was no violence or threat of violence; “simply because no violence erupted does not mean that the potential was absent or that the lack was not due to the company’s restraint against using self-help.

Every act of trespass has the potentiality of violence if the trespass is a breach of the peace.”); May Dep’t Stores Co. v. Teamsters Union Local No. 743, 64 Ill.2d 153 , 355 N.E.2d 7, 11 (1976) (state has an “historic and deeply rooted interest ... in maintaining domestic peace through application of its trespass law remedies”). 15 We turn to the second prong of the local interest exception analysis, which, in an “arguably prohibited” case, concerns whether the state court’s exercise of jurisdiction risks interfering with the NLRB’s primary jurisdiction. The Union argues interference is shown when the factual allegations underlying the potential (or actual) ULP charge are identical to the factual allegations underlying the state law claim; and here, the factual allegations are identical. Walmart counters that it is the legal controversies presented, not the factual allegations, that control, and the controversies presented in its ²²⁶ original ULP charge and in its state law claims for trespass and nuisance are not the same. Walmart is correct that we must focus on whether the controversies, not the factual allegations, are identical in deciding whether the circuit court’s exercise of jurisdiction over the trespass and nuisance claims will interfere with the NLRB’s primary jurisdiction.

In Sears , the Supreme Court decided the issue of identity by comparing the “controversy” the NLRB would have been required to decide had Sears filed ULP charges for recognitional picketing and work reassignment to the “controversy” the state court was required to decide to resolve Sears’s trespass claim. 436 U.S. at 198 , 98 S.Ct. 1745 . Its analysis makes clear that the same core of factual allegations can give rise to “controversies” before the NLRB and before a state court that are not identical in the sense that adjudication of the state claims will interfere with the NLRB’s primary jurisdiction. 436 U.S. at 198 , 98 S.Ct. 1745 . The Court later applied this principle when a ULP charge in fact was brought. See Belknap, Inc. v. Hale, 463 U.S. 491, 510 , 103 S.Ct. 3172 , 77 L.Ed.2d 798 (1983) (no preemption when controversies raised in NLRB cross-charges concerning whether a strike was a ULP and whether the employer improperly replaced striking workers did not have “anything in common” with controversy before a state court in a suit for breach of contract and misrepresentation against the employer by strike replacement workers).

See also Linn, 383 U.S. at 63-64 , 86 S.Ct. 657 (no preemption of state court defamation claim brought by manager against union based upon statements in a leaflet even though leaflets were arguably prohibited and were the basis of a ULP charge filed by the employer); Zavadil v. Alcoa Extrusions, Inc., 437 F.Supp.2d 1068, 1075 (D.S.D.2006) (“Although the analysis of a state law claim may involve attention to the same factual considerations as a charge before the [NLRB], such parallelism does not require Garmon preemption.”). Only when a ULP charge that the NLRB has heard and rejected on the merits is “recast as a state law claim” is “ ‘[t]he risk of interference with the [NLRB’s] jurisdiction ... obvious and ²²⁷ substantial.]’ ” Platt v. Jack Cooper Transp., Co., 959 F.2d 91, 95 (8th Cir.1992) (quoting Local 926 IUOE v. Jones, 460 U.S. 669, 683 , 103 S.Ct. 1453 , 75 L.Ed.2d 368 (1983)). As originally filed, Walmart’s ULP charge alleged that the Union’s events at particular Walmart stores in Maryland violated the NLRA because the demonstrators “restrained and coerced employees in the exercise of their Section 7 rights (which includes the right to refrain from supporting the UFCW).” Walmart complained that the events were orchestrated to “demonstrate to facility management in front of their employees that local management could not control its own work environment” and to persuade the Walmart sales force to “yield to the UFCWs wishes” and that the demonstrations were coercive because the protesters confronted managers, filmed employees reacting to the demonstrations, offered to pay employees for their support, and blocked ingress and egress so as to disrupt the employees in their work. Of course, Walmart amended its ULP charge to eliminate all the allegations about the Maryland events.

Even if it had not done so, the controversy before the NLRB and the controversy before the circuit court would not have been