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

Getty, J. In this appeal, a labor union seeks dismissal of an employer’s state law claims for trespass and nuisance on grounds of federal preemption. The employer, on the other hand, seeks to uphold an injunction to prohibit the labor union from holding demonstrations about the employer’s employment conditions on the employer’s private property. United Food and Commercial Workers International Union (“UFCW”), petitioner, is a labor union that represents grocery, retail, meatpacking, and food-processing workers. The other petitioners are a subsidiary of UFCW known as the Organization United for Respect at Walmart (“OURWalmart”), employees of UFCW, a coali ⁴⁸⁸ tion of labor organizations known as Jobs with Justice, and demonstrators identified only as “Does 1-10.” Respondents— Wal-mart Stores, Inc.; WalMart Stores East, LP; and Sam’s East, Inc. (collectively, “Walmart”)—own and operate approximately sixty retail stores in Maryland.

Between 2011 and 2013, UFCW held demonstrations at Walmart stores throughout Maryland, protesting Walmart’s employment conditions. In response, Walmart sued UFCW in the Circuit Court for Anne Arundel County for trespass and nuisance, and sought an injunction against UFCW. UFCW filed a motion to dismiss, arguing that Walmart’s claims were preempted by the National Labor Relations Act (“NLRA”). The circuit court held that Walmart’s claims were not preempted, and denied UFCW’s motion to dismiss.

Wal-mart filed a motion for a preliminary injunction, in which it argued that this case does not involve a labor dispute within the meaning of Maryland’s Anti-Injunction Act (“AIA”). The circuit court agreed with Walmart that the AIA does not apply, and granted the preliminary injunction. After the parties filed cross-motions for summary judgment, the circuit court granted summary judgment in favor of Walmart, and issued a permanent injunction against UFCW. On appeal, the Court of Special Appeals affirmed the judgment of the circuit court.

Before this Court, UFCW argues that the circuit court erred in denying its motion to dismiss, because Walmart’s state law claims for trespass and nuisance are preempted by the NLRA. Additionally, UFCW argues that this case involves a labor dispute within the meaning of the AIA, and that Walmart did not satisfy the AIA’s requirements to receive an injunction. For the reasons that follow, we hold that Walmart’s claims for trespass and nuisance are not preempted by the NLRA, and therefore the circuit court properly denied UFCW’s motion to dismiss. Furthermore, we hold that the circuit court was correct in ruling that this case does not involve a labor dispute within the meaning of the AIA.

Accordingly, we shall affirm the judgment of the Court of Special Appeals. ⁴⁸⁹ BACKGROUND UFCW represents grocery, retail, meatpacking, and food-processing workers. Between 2011 and 2013, UFCW held demonstrations at Walmart stores in thirteen states, including Maryland. 1 Walmart employees are not unionized, and UFCW does not seek to represent them. UFCW claims that the purpose of its demonstrations was to persuade Walmart to improve employment conditions and to stop retaliating against employees who speak out for better conditions. UFCWs demonstrations in Maryland took place between July 16, 2011 and September 6, 2013, at seven Walmart stores located in Arbutus, Bowie, Germantown, Hanover, Landover Hills, Laurel, and Severn.

Most demonstrations took place inside the stores; some took place in adjacent parking areas owned or leased by Walmart; and one took place on a public road near one of the stores. The demonstrations were organized as “flash mobs,” meaning the demonstrators were notified by social media or cell phone text messages to quickly gather at a particular store. 2 The demonstrators then arrived at the store en masse in a coordinated effort. During the demonstrations, they marched through the stores—chanting, singing, blowing whistles, shouting into bullhorns and megaphones, and littering the stores with flyers. On some occasions, demonstrators inside the stores interrupted management meetings by forcing themselves into the meeting rooms and videotaping the managers’ efforts to get them to leave.

Some of the demonstrations lasted only fifteen to twenty minutes, while others lasted over an hour and included over one hundred demonstrators. ⁴⁹⁰ During many of the demonstrations, the demonstrators interfered with customers by blocking access to the cash registers and restrooms. In some cases, customers with items in their shopping carts left the store without purchasing any items. For example, during a demonstration at the Laurel Walmart on July 16, 2011, forty demonstrators wearing OUR-Walmart t-shirts formed a human chain stretching from the first to the last checkout counter. In some instances, the demonstrators also blocked ingress and egress to parking lots, parking spaces, and store entrances.

During a demonstration in May 2012 at the Bowie Walmart, demonstrators parked a large van decorated 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. At all of the demonstrations, Walmart managers repeatedly told the demonstrators to leave Walmart’s property, but they refused. In each instance, the demonstrators were ultimately removed by the police, but sometimes returned to the same store as soon as the next day.

Walmart’s lawyers sent cease and desist letters to counsel for UFCW in October 2011, October 2012, November 2012, and April 2013. UFCW refused to cease the demonstrations absent a court order to do so. In March 2018, Walmart filed an unfair labor practice (“ULP”) charge against UFCW and OURWalmart with the National Labor Relations Board (“NLRB”). Walmart alleged that UFCW had violated section 8 of the NLRA “by planning, orchestrating, and conducting a series of unauthorized and blatantly trespassory in-store mass demonstrations ... by which the UFCW restrained and coerced [Walmart] employees in the exercise of their Section 7 rights” under the NLRA.

The ULP charge included a summary of seventy “events” UFCW had held at Walmart stores in thirteen states, including twelve “events” in Maryland. The allegations in the ULP charge all pertained to instances in which demonstrators confronted Walmart managers or employees directly, using “in your face” tactics in an effort to intimidate them into supporting UFCW. Demonstrations that did not include such coercive ⁴⁹¹ tactics were not included in the ULP charge. In May 2013, Walmart amended its ULP charge to narrow 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 a complaint against UFCW in the Circuit Court for Anne Arundel County. 3 In its first amended complaint, filed on October 2, 2013, Walmart alleged that UFCW had violated Maryland law “through coordinated, statewide acts of trespass,” such as conducting “in-store ‘flash mobs’” and blocking “ingress and egress to parking lots, parking spaces, vehicular traffic, and store entrances.” The amended complaint detailed fifteen demonstrations at seven Walmart stores in Maryland. The complaint 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 a preliminary injunction.

As part of its motion, Walmart argued that this case does not involve a labor dispute within the meaning of the AIA, and therefore Walmart was not required to satisfy the AIA’s heightened requirements to receive an injunction. On October 25, 2013, UFCW filed a response in opposition to the motion. UFCW responded to Walmart’s argument concerning the AIA that this case does involve a labor dispute, and therefore Walmart must satisfy the heightened requirements in order to receive an injunction. On November 25 and 26, 2013, the circuit court held an evidentiary hearing on the motion.

First, after hearing argument from both parties, the circuit court ruled that the case does not involve a labor dispute within the meaning of the AIA, so Walmart was not required to satisfy its heightened criteria for receiving an injunction. Next, Walmart presented three witnesses, each of whom was cross-examined by UFCW. ⁴⁹² At the conclusion of the hearing, the circuit court granted the preliminary injunction. In its order, entered on November 26, 2013, the circuit court enjoined UFCW from (i) entering on or inside Walmart private property in the State of Maryland to engage in activities such as unlawful picketing, patrolling, parading, demonstrations, “flash mobs,” handbilling, solicitation, customer interference, and manager confrontations; (ii) entering on or inside Walmart’s private property in the State of Maryland without permission or authorization from Walmart for any purpose other than shopping for and/or purchasing merchandise at Walmart’s stores; [and] (iii) engaging in any nuisance conduct off Walmart’s private property in the State of Maryland which blocks, causes to be blocked, disrupts and/or interferes with Wal-mart customers’ or associates’ access to, or ability to move around on, or enter or exit Walmart private property in the State of Maryland[.] Meanwhile, on October 11, 2013, UFCW filed a motion to dismiss the complaint for lack of subject matter jurisdiction, arguing that Walmart’s claims were preempted by the NLRA. On October 28, 2013, Walmart filed a response in opposition to the motion.

On November 12, 2013, the circuit court held a hearing on the motion, and ruled that Walmart’s claims were not preempted. The circuit court issued an order denying UFCW’s motion to dismiss on November 26, 2013. On August 19, 2014, after extensive discovery, Walmart and UFCW filed cross-motions for summary judgment. At a hearing on March 3, 2015, the circuit court denied UFCW’s motion and granted Walmart’s motion.

On March 16, 2015, the circuit court issued a memorandum opinion and order to that effect. That same day, the circuit court entered a permanent injunction against UFCW, prohibiting it 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 del ⁴⁹³ egations 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 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 Wal-mart’s customers’ or associates’ access to, or ability to move around on or exit, Walmart private property in the State of Maryland!.] The injunction defined “Walmart’s private property” as the interior of its stores and other facilities in Maryland, and “[t]he apron sidewalks, parking lots, and other areas on any parcel of property in Maryland that Walmart controls as owner or lessee.” UFCW appealed to the Court of Special Appeals, which affirmed the circuit court in a reported opinion on June 1, 2016. United Food & Commercial Workers Int’l Union v. Wal-Mart Stores, Inc. (“UFCW"), 228 Md.App. 203, 137 A.3d 355 (2016). UFCW then petitioned this Court for a writ of certiorari on July 11, 2016, which we granted on September 2, 2016.

United Food & Commercial Workers Int’l Union v. Wal-Mart, 450 Md. 103 , 146 A.3d 463 (2016). UFCW presents two questions for our review, which we have rephrased as follows 4 : ⁴⁹⁴ 1) Did the circuit court err in denying UFCW’s motion to dismiss for lack of jurisdiction on grounds of federal preemption? 2) Did the circuit court err in ruling that this case does not involve a labor dispute within the meaning of the AIA? STANDARD OF REVIEW Whether a federal statute preempts Maryland law is a question of law that this Court reviews de novo. Sweeney v. Savings First Mortg., LLC, 388 Md. 319, 326 , 879 A.2d 1037 (2005).

Similarly, the construction of a Maryland statute, like the AIA, and the determination of whether the statute applies to a particular case, are also questions of law that this Court reviews de novo. See Vu v. Allied Foot & Ankle, P.C., 180 Md.App. 663, 677-84 , 952 A.2d 379 (2008) (reviewing without deference the circuit court’s determination that the AIA did not apply). DISCUSSION A. NLRA Preemption Congress has the power, pursuant to the Supremacy Clause 5 of the United States Constitution, to preempt state law. Batson v. Shiflett, 325 Md. 684, 708 , 602 A.2d 1191 (1992) (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 , 6 L.Ed. 23 (1824)).

Federal law preempts state law when “Congress has expressly stated preemptive intent or evidenced an intent to occupy a field,” or when state law conflicts with federal law. Law v. Int’l Union of Operating Eng’rs Local No. 37, 373 Md. 459, 466-67 , 818 A.2d 1136 (2003). “Because Congress has never exercised authority to occupy the entire field in the area ⁴⁹⁵ of labor legislation, the question of whether a certain state action is preempted by federal law is one of congressional intent.” Batson, 325 Md. at 708 , 602 A.2d 1191 (citing Malone v. White Motor Corp., 435 U.S. 497, 504 , 98 S.Ct. 1185 , 55 L.Ed.2d 443 (1978)). The enactment of the NLRA in 1935 marked a fundamental change in this Nation’s labor policies. Congress expressly recognized that collective organization of segments of the labor force into bargaining units capable of exercising economic power comparable to that possessed by employers could produce benefits for the. entire economy.

Congress determined that those benefits would eventually outweigh the occasional costs of industrial strife associated with the organization of unions and the negotiation and enforcement of collective bargaining agreements. Vane v. Nocella, 303 Md. 362, 366 , 494 A.2d 181 (1985). In addition, “[t]he NLRA established the NLRB to adjudicate labor disputes between and among employees, unions and employers.” Law, 373 Md. at 468 , 818 A.2d 1136 . As explained by the Supreme Court, Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties.

It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. Garner v. Teamsters, Chauffeurs & Helpers Local Union No. 776, 346 U.S. 485, 490 , 74 S.Ct. 161 , 98 L.Ed. 228 (1953). “Thus, to achieve uniform as well as effective enforcement of the national labor policy, Congress vested the NLRB, not ⁴⁹⁶ federal or state courts, with primary jurisdiction over activities subject to regulation by the Board.” Vane, 303 Md. at 367 , 494 A.2d 181 (citing Local 926, Int’l Union of Operating Eng’rs v. Jones, 460 U.S. 669, 681 , 103 S.Ct. 1453 , 75 L.Ed.2d 368 (1983)). The NLRB has primary jurisdiction over activities regulated by sections 7 and 8 of the NLRA.

Law, 373 Md. at 471 , 818 A.2d 1136 . Section 7 protects certain conduct of employees, while section 8 prohibits certain conduct of employers and labor organizations by defining what constitutes an “unfair labor practice.” See 29 U.S.C. §§ 157 , 158. Pursuant to section 7, employees “have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection!)]” Id. at § 157. In addition, and particularly relevant here, employees “also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment ....” Id.

Pursuant to section 8, it is “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.]” Id. at 158(b)(1) (paragraph break omitted). The NLRB has the authority, pursuant to the NLRA, “to prevent any person from engaging in any unfair labor practice ... affecting commerce.” Id. at § 160. “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, 303 Md. at 368 , 494 A.2d 181 . “Consequently, a major difficulty with labor law preemption analysis is that ‘the aims and social policy’ Congress was implementing ‘were drawn with broad strokes while the details had to be filled in, to no small extent, by the judicial process.’ ” Id. (quoting San Diego Bldg. Trades Council, Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236, 240 , 79 S.Ct. 773 , 3 L.Ed.2d 775 (1959)). ⁴⁹⁷ Accordingly, through a series of decisions, the Supreme Court established the following framework for determining whether state law causes of action are preempted by the NLRA: 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.... [I]f the conduct at issue is arguably prohibited or protected[,] otherwise applicable state law and procedures are ordinarily preempted.

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. The question of whether regulation should be allowed because of the deeply-rooted nature of the local interest involves a sensitive balancing of any harm to the regulatory scheme established by Congress, either in terms of negating the [NLRBJ’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. Jones, 460 U.S. at 676 , 103 S.Ct. 1453 (citations omitted). Thus, in cases of arguably protected or prohibited conduct, we begin with the presumption that the conduct is regulated by the NLRA and therefore that state law claims are preempted.

However, the presumption is rebutted if either of two exceptions to preemption apply. First, the NLRA does not preempt state law claims if “the conduct at issue is only a peripheral concern of the [NLRA].” Id. (citing Garmon, 359 U.S. at 243 , 79 S.Ct. 773 ). Second, the NLRA does not preempt state law claims when the conduct at issue “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[.]” Id.

(citing Garmon , 359 U.S. at ⁴⁹⁸ 244, 79 S.Ct. 773 ). This is known as the “local interest exception” to the NLRA preemption analysis. To determine whether the local interest exception applies in cases of arguably prohibited conduct, 6 the courts engage in a two-part inquiry. First, the courts must determine whether “there exist[s] a significant state interest in protecting the citizen from the challenged conduct.” Sears, Roebuck & Co. v. San Diego Cnty.

Dist. Council of Carpenters, 436 U.S. 180, 196 , 98 S.Ct. 1745 , 56 L.Ed.2d 209 (1978). Second, the courts must consider whether “the exercise of state jurisdiction over the tort claim entail[s] little risk of interference with the regulatory jurisdiction of the [NLRB].” Id. Regarding this second inquiry, the courts must focus on “whether the controversy presented to the state court is identical with that which could be presented to the [NLRB].” Belknap, Inc. v. Hale, 463 U.S. 491, 510 , 103 S.Ct. 3172 , 77 L.Ed.2d 798 (1983).

UFCW argues that the circuit court erred in denying its motion to dismiss for lack of jurisdiction. UFCW asserts that Walmart’s state law claims for trespass and nuisance are preempted by the NLRA because they pertain to conduct that is arguably prohibited by the NLRA. Walmart responds that its state law claims are not preempted because the local interest exception to the NLRA preemption analysis applies to trespass and nuisance. Thus, the issue before this Court is whether the local interest exception applies to Walmart’s state law claims for trespass and nuisance. 7 ⁴⁹⁹ In order to determine whether the local interest exception applies to Walmart’s claims, we first must decide whether there is a significant state interest involved in those claims.

In other words, does “there existí ] a significant state interest in protecting the citizen from the challenged conduct”? Sears, 436 U.S. at 196 , 98 S.Ct. 1745 . Second, we must consider whether “the exercise of state jurisdiction over the tort claim entail[s] little risk of interference with the regulatory jurisdiction of the [NLRB].” Id. Regarding the first inquiry, UFCW asserts that the local interest exception only applies to conduct involving violence, threats of violence, property damage, or malice, none of which occurred here, and therefore there is no “significant state interest” involved in Walmart’s claims.

Walmart responds that Sears held that protecting citizens from “peaceful trespass” qualifies as a significant state interest, even in the absence of violence or threats of violence. Moreover, Walmart argues that protecting private property rights is a more significant state interest than certain other state interests that have been recognized to support the local interest exception, and therefore protecting private property rights should qualify as well. Regarding the second inquiry, UFCW asserts that courts must look to whether the conduct at issue in the state law claims is similar to the conduct at issue in the (actual or hypothetical) NLRB claim. If the conduct is similar, then the state law claims are preempted.

In this case, UFCW contends, the conduct at issue in Walmart’s state law trespass and nuisance claims is the same conduct that would have been at issue in the NLRB claim as originally filed, and therefore the state law claims are preempted. Walmart responds that courts must compare the legal elements of the state law claims and the (actual or hypothetical) NLRB claim, not the factual underpinnings of those claims, in order to determine whether there is a risk of interference with the regulatory jurisdiction of the NLRB. In this case, Walmart contends, the legal elements of its state law trespass and nuisance claims are distinct from the NLRB claim filed by Walmart: the former is concerned with whether UFCW trespassed on Walmart’s ⁵⁰⁰ property by exceeding its limited invitation to the public to enter its property for shopping purposes; the latter is concerned with whether UFCW engaged in coercive activities in violation of section 8 of the NLRA. Therefore, Walmart concludes, its state law claims for trespass and coercion are not preempted by the NLRA.

Both parties recognize that Sears is the leading Supreme Court decision regarding the local interest exception to NLRA preemption, and both parties assert that Sears is controlling here. However, the parties differ on their respective interpretations of the Sears decision. In Sears , a carpenters union picketed on Sears’ exterior private property. 436 U.S. at 182 , 98 S.Ct. 1745 . “The picketing was peaceful and orderly.” Id. When Sears attempted to remove the pickets from its property through the use of its private security, the union refused to leave.

Id. at 182-83 , 98 S.Ct. 1745 . Thereafter, Sears filed a complaint in state court “seeking an injunction against the continuing trespass.” Id. at 183 , 98 S.Ct. 1745 . Sears asserted no claim that the picketing itself violated any state or federal law. It sought simply to remove the pickets from its property to the public walkways, and the injunction issued by the state court was strictly confined to the relief sought.

Thus, as a matter of state law, the location of the picketing was illegal but the picketing itself was unobjectionable. Id. at 185 , 98 S.Ct. 1745 . The union argued that Sears’ state law claim was preempted because the peaceful picketing was both arguably protected and arguably prohibited by the NLRA. Id.

The Supreme Court began its analysis by quoting the general rule of NLRA preemption: “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 interference with national policy is to be averted.” Id. at 187-88, 98 S.Ct. 1745 (quoting Garmon, 359 U.S. at 245 , 79 S.Ct. 773 ). The Sears Court then qualified that general rule with the following observation: ⁵⁰¹ While the Garmon formulation accurately reflects the basic federal concern with potential state interference with national labor policy, the history of the labor pre-emption doctrine in this Court does not support an approach which sweeps away state-court jurisdiction over conduct traditionally subject to state regulation without careful consideration of the relative impact of such a jurisdictional bar on the various interests affected. Id. at 188, 98 S.Ct. 1745 . The Court then turned to the “arguably prohibited” prong of the preemption analysis, and began by discussing prior cases in which the contested state law claims were held to be preempted by the NLRA.

See id. at 191-94 , 98 S.Ct. 1745 (citing, inter alia, Garner, 346 U.S. 485 , 74 S.Ct. 161 , 98 L.Ed. 228 ). Next, the Sears Court contrasted those cases with others in which it had held that the local interest exception applied, and therefore the state law claims at issue were not preempted. See id. at 194-97 , 98 S.Ct. 1745 . The Court summarized these “local interest” cases as follows: Thus, for example, the Court has upheld state-court jurisdiction over conduct that 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.” [ ] Garmon, 359 U.S. at 244 , 79 S.Ct. 773 .

See Construction Workers v. Laburnum Construction Corp., 347 U.S. 656 , 74 S.Ct. 833 , 98 L.Ed. 1025 [ (1954) ] (threats of violence); Youngdahl v. Rainfair, Inc., 355 U.S. 131 , 78 S.Ct. 206 , 2 L.Ed.2d 151 [ (1957) ] (violence); Automobile Workers v. Russell, 356 U.S. 634 , 78 S.Ct. 932 , 2 L.Ed.2d 1030 [ (1958) ] (violence); Linn v. Plant Guard Workers, 383 U.S. 53 , 86 S.Ct. 657 , 15 L.Ed.2d 582 [ (1966) ] (libel); Farmer v. Carpenters, 430 U.S. 290 , 97 S.Ct. 1056 , 51 L.Ed.2d 338 [ (1977) ] (intentional infliction of mental distress). Id. at 195, 98 S.Ct. 1745 . Next, citing Farmer , the Sears Court identified two factors that “warranted a departure from the general pre-emption ⁵⁰² guidelines in the ‘local interest’ cases.” Id. at 196 , 98 S.Ct. 1746 . First, there existed a significant state interest in protecting the citizen from the challenged conduct.

Second, although the challenged conduct occurred in the course of a labor dispute and an unfair labor practice charge could have been filed, the exercise of state jurisdiction over the tort claim entailed little risk of interference with the regulatory jurisdiction of the [NLRB]. Although the arguable federal violation and the state tort arose in the same factual setting, the respective controversies presented to the state and federal forums would not have been the same. 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 Gamer) or different from (as in Farmer) that which could have been, but was not, presented to the [NLRB]. 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 [NLRB] which the arguably prohibited branch of the Garmon doctrine was designed to avoid.

Id. at 196-97, 98 S.Ct. 1745 (footnote omitted). Finally, the Sears Court applied these two factors to Sears’ state law claim and determined that “the controversy which Sears might have presented to the [NLRB] is not the same as the controversy presented to the state court.” Id. at 198 , 98 S.Ct. 1745 . If Sears had filed a charge, the federal issue would have been whether the picketing had a recognitional or work-reassignment objective; decision of that issue would have entailed relatively complex factual and legal determinations completely unrelated to the simple question whether a trespass had occurred. Conversely, in the state action, Sears only challenged the location of the picketing; whether the