{ "id": 4343362, "name": "JASON FISHER, BYRON ADAMS, B.C. BARNES, CHERYL BARTLETT, KATHY BEAM, CAROLYN BOGGS, SUSETTE BRYANT, DANNY CASE, GENE DRY, RICKY GRIFFIN, WENDY HERNDON, EVERETT JENKINS, SANDRA LANGSTON, CYNTHIA STAFFORD, MARY TAUTIN, and TIMOTHY THOMAS, Plaintiffs v. COMMUNICATION WORKERS OF AMERICA, COMMUNICATION WORKERS OF AMERICA, DISTRICT 3 and COMMUNICATION WORKERS OF AMERICA LOCAL 3602, Defendants", "name_abbreviation": "Fisher v. Communication Workers of America", "decision_date": "2011-08-16", "docket_number": "No. COA10-927", "first_page": "46", "last_page": "66", "citations": [ { "type": "official", "cite": "215 N.C. App. 46" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "359 U.S. 236", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164086 ], "opinion_index": -1, "case_paths": [ "/us/359/0236-01" ] }, { "cite": "9 L. Ed. 2d 732", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1964, "opinion_index": 0 }, { "cite": "377 U.S. 252", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167669 ], "year": 1964, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/us/377/0384-01" ] }, { "cite": "427 U.S. 132", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175136 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/us/427/0132-01" ] }, { "cite": "356 U.S. 634", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165917 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/us/356/0634-01" ] }, { "cite": "430 U.S. 290", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12123307 ], "weight": 13, "year": 1977, "pin_cites": [ { "page": "302" }, { "page": "351" }, { "page": "301" }, { "page": "351" }, { "page": "302" }, { "page": "351", "parenthetical": "citation and quotation marks omitted" }, { "page": "302" }, { "page": "351" }, { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/us/430/0290-01" ] }, { "cite": "266 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1980, "pin_cites": [ { "page": "753" }, { "page": "753" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548563 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/47/0153-01" ] }, { "cite": "463 U.S. 491", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196894 ], "weight": 28, "year": 1983, "pin_cites": [ { "page": "494-95" }, { "page": "804-05" }, { "page": "805" }, { "page": "496-97" }, { "page": "805" }, { "page": "497" }, { "page": "806" }, { "page": "814" }, { "page": "807" }, { "page": "510" }, { "page": "814" }, { "page": "510-11" }, { "page": "814" }, { "page": "511" }, { "page": "815", "parenthetical": "citation and quotation marks omitted" }, { "page": "512" }, { "page": "815" }, { "page": "512" }, { "page": "815-16" }, { "page": "512" }, { "page": "816" }, { "page": "510" }, { "page": "814" } ], "opinion_index": 0, "case_paths": [ "/us/463/0491-01" ] }, { "cite": "309 U.S. 261", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6139524 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/us/309/0261-01" ] }, { "cite": "154 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1967, "pin_cites": [ { "page": "357-58" }, { "page": "358" } ], "opinion_index": 0 }, { "cite": "270 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566370 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0160-01" ] }, { "cite": "383 U.S. 53", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167192 ], "weight": 15, "year": 1966, "pin_cites": [ { "page": "55" }, { "page": "586" }, { "page": "61" }, { "page": "589" }, { "page": "590" }, { "page": "64" }, { "page": "590" }, { "page": "64-65" }, { "page": "591" }, { "page": "64" }, { "page": "590" }, { "page": "352-53" }, { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/us/383/0053-01" ] }, { "cite": "473 U.S. 95", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196434 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/473/0095-01" ] }, { "cite": "270 N.L.R.B. 1330", "category": "reporters:federal", "reporter": "N.L.R.B.", "year": 1984, "pin_cites": [ { "page": "1336" } ], "opinion_index": 0 }, { "cite": "346 N.L.R.B. 360", "category": "reporters:federal", "reporter": "N.L.R.B.", "pin_cites": [ { "page": "363" } ], "opinion_index": 0 }, { "cite": "237 N.L.R.B. 207", "category": "reporters:federal", "reporter": "N.L.R.B.", "year": 1978, "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7 158", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "(b)" }, { "page": "(b)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7 157", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "403 U.S. 274", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027073 ], "weight": 4, "year": 1971, "pin_cites": [ { "page": "292" }, { "page": "486" }, { "page": "292" }, { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/us/403/0274-01" ] }, { "cite": "82 S. Ct. 237", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 1962, "pin_cites": [ { "page": "344-45" } ], "opinion_index": 0 }, { "cite": "370 U.S. 173", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166458 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/us/370/0173-01" ] }, { "cite": "476 U.S. 380", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12628 ], "weight": 12, "year": 1986, "pin_cites": [ { "page": "396" }, { "page": "404" }, { "page": "403" }, { "page": "395" }, { "page": "403" }, { "page": "395" }, { "page": "403" }, { "page": "394" }, { "page": "403" }, { "page": "395" }, { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/us/476/0380-01" ] }, { "cite": "436 U.S. 180", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490556 ], "weight": 10, "year": 1978, "pin_cites": [ { "page": "188" }, { "page": "220" }, { "page": "187-190" }, { "page": "223, n.7" }, { "page": "242" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/us/436/0180-01" ] }, { "cite": "460 U.S. 669", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197975 ], "weight": 8, "year": 1983, "pin_cites": [ { "page": "676", "parenthetical": "quoting citing Sears v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 188, 56 L. Ed. 2d 209, 220 (1978)" }, { "page": "375-76", "parenthetical": "quoting citing Sears v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 188, 56 L. Ed. 2d 209, 220 (1978)" }, { "page": "676" }, { "page": "676" }, { "page": "375" }, { "page": "676, n.8" }, { "page": "376, n.8" } ], "opinion_index": 0, "case_paths": [ "/us/460/0669-01" ] }, { "cite": "705 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "693 S.E.2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "152", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "359 U.S. 236", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164086 ], "weight": 29, "pin_cites": [ { "page": "245" }, { "page": "244" }, { "page": "782-83", "parenthetical": "footnote omitted" }, { "page": "245" }, { "page": "783" }, { "page": "245-46" }, { "page": "783-84", "parenthetical": "footnote omitted" }, { "page": "243-44" }, { "page": "782" }, { "page": "245" }, { "page": "783" }, { "page": "245-46" }, { "page": "783" }, { "page": "245" }, { "page": "783" }, { "page": "783-84" }, { "page": "245-46" }, { "page": "783" }, { "page": "245" }, { "page": "783" }, { "page": "243-44" }, { "page": "782" }, { "page": "246" }, { "page": "775" } ], "opinion_index": 0, "case_paths": [ "/us/359/0236-01" ] } ], "analysis": { "cardinality": 1532, "char_count": 51242, "ocr_confidence": 0.749, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14740299530976517 }, "sha256": "4bd7fcab4cb926afeaf882b5058948524f28d3ddf92cafb2a6dc02a740a0ff46", "simhash": "1:63dbb43e8bf4b8d3", "word_count": 8303 }, "last_updated": "2023-07-14T18:49:09.394868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and BEASLEY concur." ], "parties": [ "JASON FISHER, BYRON ADAMS, B.C. BARNES, CHERYL BARTLETT, KATHY BEAM, CAROLYN BOGGS, SUSETTE BRYANT, DANNY CASE, GENE DRY, RICKY GRIFFIN, WENDY HERNDON, EVERETT JENKINS, SANDRA LANGSTON, CYNTHIA STAFFORD, MARY TAUTIN, and TIMOTHY THOMAS, Plaintiffs v. COMMUNICATION WORKERS OF AMERICA, COMMUNICATION WORKERS OF AMERICA, DISTRICT 3 and COMMUNICATION WORKERS OF AMERICA LOCAL 3602, Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nJason Fisher, Byron Adams, B.C. Barnes, Cheryl Bartlett, Kathy Beam, Susette Bryant, Gene Dry, Ricky Griffin, Wendy Herndon, Everett Jenkins, Sandra Langston, Cynthia Stafford, Mary Tautin, and Timothy Thomas (collectively referred to herein as \u201cplaintiffs\u201d) appeal from the business court\u2019s order granting summary judgment in favor of Communication Workers of America (\u201cCWA\u201d), Communication Workers of America, District 3 (\u201cCWA District 3\u201d), and Communication Workers of America Local 3602 (\u201cCWA Local 3602\u201d) (collectively referred to herein as \u201cdefendants\u201d). As plaintiffs\u2019 claims are preempted by the National Labor Relations Act, we affirm the business court\u2019s order dismissing plaintiffs\u2019 complaint.\nI. Background\nOn 11 June 2008, plaintiffs filed a complaint against defendants setting forth the following claims: (1) a violation of the Identity Theft Protection Act; (2) unfair and deceptive trade practices; and (3) invasion of privacy. The complaint requested that defendants be enjoined \u201cfrom engaging in future violations of the Identity Theft Protection Act;\u201d that judgment be entered against defendants \u201cjointly and severally, in an amount exceeding $10,000;\u201d and for treble damages, reasonable attorneys\u2019 fees, and punitive damages. This case was designated as a complex business case and, by order from the Chief Justice of the North Carolina Supreme Court, assigned to the business court on 12 June 2008. Plaintiffs filed an amended complaint on 14 July 2008. On 11 August 2008, defendants CWA and CWA District 3 filed a motion to dismiss plaintiffs\u2019 complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6). Defendant CWA Local 3602 filed a separate motion to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) on the same date. On 26 September 2008, the business court issued an order \u201ccovering scheduling and case management issues and/or trial in this case.\u201d On 30 October 2008, the business court issued an \u201cOrder & Opinion\u201d denying defendants\u2019 motions to dismiss as to plaintiffs\u2019 claims for (1) violations of the Identity Theft Protection Act and (2) unfair and deceptive trade practices but granted defendants\u2019 motion to dismiss as to plaintiffs\u2019 third claim for invasion of privacy. On 1 December 2008, defendants CWA and CWA District 3 filed their \u201cAnswer and Counterclaim of Defendant\u201d denying plaintiffs\u2019 claims; raising several affirmative defenses, including \u201cpreemption by federal law[;]\u201d and raising a separate counterclaim against plaintiff Daniel Case \u201cfor contribution and equitable subrogation of damages.\u201d Defendant CWA Local 3602 also filed a separate, but similar \u201cAnswer and Counterclaim of Defendant\u201d on the same date, denying plaintiffs\u2019 claims, raising several affirmative defenses, and raising a counterclaim against plaintiff Daniel Case \u201cfor contribution and equitable subrogation of damages.\u201d On 31 December 2008, plaintiff Daniel Case moved to dismiss defendants\u2019 counterclaims, which was granted by written order of the business court on 9 March 2009. On 2 April 2009, plaintiffs filed their responses to defendant CWA\u2019s request for admissions. On 4 February 2010, defendants CWA and CWA District 3, collectively, and defendant CWA Local 3602, individually, filed motions for summary judgment. Likewise, on 8 February 2010, plaintiffs filed their motion for summary judgment.\nThe affidavits, depositions, and documents filed with those motions, along with the parties\u2019 pleadings, tended to show that on the morning of 9 October 2007, defendant CWA Local 3602 President John Glenn, an employee of BellSouth Communications (now AT&T Southeast), attended a meeting of North Carolina local union presidents in Greensboro, North Carolina. While at this meeting he received a printed copy of a spreadsheet from defendant CWA District 3 identifying the employees of BellSouth Communications who had revoked their union dues deduction, effectively ending their membership in the union. Defendant CWA District 3 had received this spreadsheet as an attachment in an email from Judy Brown, membership dues specialist for defendant CWA. The spreadsheet identified the employees by name, national ID number, local union number, pay group, and other information. The national ID number is the employee\u2019s social security number. After the meeting in Greensboro, Mr. Glenn arrived back at the BellSouth work center, located in Burlington, finished his shift and, between 4:30 and 5:00 p.m., posted the spreadsheet on defendant CWA Local 3602\u2019s bulletin board inside the Burlington facility. Plaintiff Daniel Case removed the list from the bulletin board around 5:30 or 6:00 p.m. the same day and retained it in his possession. Around 6:30 p.m., Mr. Glenn received a phone call from his supervisor stating that there was a problem with the list on the bulletin board because it contained employees\u2019 social security numbers. Mr. Glenn told his supervisor that he would remove it but his supervisor informed him that he had already instructed the individual who had complained to take it down and \u201cslide it under his door.\u201d\nOn 14 January 2008, plaintiffs filed individual and identical complaints with the National Labor Relations Board (\u201cNLRB\u201d) against defendant CWA Local 3602 contending that the posting of the spreadsheet containing plaintiffs\u2019 social security numbers \u201cexposed [plaintiffs] ... and similarly situated employees to risk of \u2018identity theftQ\u2019 \u201d and amounted to a violation of \u201cSection 8(b)(1)(a) of the [National Labor Relations Act] by causing [plaintiffs] ... to feel coerced in the exercise of their Section 7 rights.\u201d The complaint further alleged that defendant CWA Local 3602\u2019s \u201cinvasion of [plaintiffs\u2019] . . . privacy constituted a breach of the duty of fair representation.\u201d In March 2008, defendant CWA Local 3602 posted a \u201cNotice to Employees and Members\u201d stating that \u201cPursuant to a Settlement Agreement Approved by a Regional Director of the National Labor Relations Board\u201d it agreed not to \u201cpost on our bulletin boards a list of nonmember employees identified with their social security number from our Local \u2014 Communications Workers of America, Local 3602[;]\u201d not to \u201cotherwise publicly disclose the social security numbers of any bargaining unit employee of our Local \u2014 Communications Workers of America, Local 3602 [;]\u201d and not to \u201cin any like or related manner, restrain or coerce our employees in the exercise of their rights as guaranteed in Section 7 of the Act.\u201d Also, as part of the settlement agreement, defendant CWA Local 3602 sent a letter, dated 17 July 2008, to each of employees whose social security numbers had been posted apologizing for its mistake but stating that by its \u201cvoluntary settlement agreement\u201d it did \u201cnot admit that it ha[d] violated the National Labor Relations Act[.]\u201d\nOn 7 May 2010, the business court by written order granted defendants\u2019 motion for summary judgment and dismissed plaintiffs\u2019 claims, as defendants were\nentitled to a judgment as a matter of law because (1) resolution of Plaintiffs\u2019 claims would entail regulation of conduct that is arguably protected or prohibited by federal labor law, see generally San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959) and is therefore preempted, (2) none of the exceptions to Garmon preemption relied on by Plaintiffs applies in this case, and (3) this Court therefore lacks subject matter jurisdiction to consider Plaintiffs\u2019 claims.\nOn 1 June 2010, plaintiffs filed written notice of appeal from the business court\u2019s 7 May 2010 order.\nOn appeal, plaintiffs contend that \u201cthe [business] court erred in ruling that the National Labor Relations Act (\u201cNLRA\u201d) preempted North Carolina\u2019s Identity Theft Protection Act [(\u201cNCITPA\u201d)] where a labor organization posted employees\u2019 social security numbers on a publicly accessible bulletin board.\u201d Specifically, plaintiffs argue that the business court erred in granting defendants\u2019 motions for summary judgment and ruling that federal law preempted plaintiffs\u2019 claims as (1) \u201cGarmon preemption does not apply\u201d or, in the alternative, (2) \u201cBoth Garmon exceptions apply\u201d as \u201c[t]he admitted conduct is \u2018peripheral\u2019 to the National Labor Policy\u201d and \u201cthe NCITPA touches significant local interests.\u201d Defendants counter that plaintiffs\u2019 claims are preempted by the National Labor Relations Act, neither of the Garmon exceptions apply or, in the alternative, plaintiffs\u2019 claims are also preempted by the duty of fair representation.\nII. Standard of Review\nThe standard of review from a trial court\u2019s ruling on a motion for summary judgment is\nwhether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Summary judgment is appropriate when viewed in the light most favorable to the non-movant, the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\nWhisnant v. Carolina Farm Credit, _N.C. App. _, _, 693 S.E.2d 149, 152 (2010) (citation omitted), disc. review denied,_ N.C._, 705 S.E.2d 745 (2011); N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2009).\nIII. Federal Preemption of plaintiffs\u2019 claims\nA. Garmon Preemption\nPlaintiffs first contend that their claims are not preempted by the National Labor Relations Act as (1) the NCITPA does not conflict with the national labor policy; (2) preemption is not triggered by prior NLRB action or inaction; and (3) plaintiffs\u2019 unsuccessful NLRB charge is different from its State claim. Defendants counter that plaintiffs originally believed that the posting of their social security numbers amounted to an NLRA violation, as they first filed NLRB claims arguing that this conduct amounted to a violation of NLRA Sections 7 and 8; the NLRB provided a remedy for these alleged violations of the NLRA, the voluntary settlement agreement; and the alleged conduct in plaintiffs\u2019 State claims is \u201carguably prohibited by the NLRA[,]\u201d and thus preempted by federal law.\nIn San Diego Building Trades Council v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, the United States Supreme Court explained the general principles to consider when determining whether state law claims are preempted by the NLRA:\nWhen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by \u00a7 7 of the National Labor Relations Act, or constitute an unfair labor practice under \u00a7 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes.\nId. at 244, 3 L. Ed. 2d at 782-83 (footnote omitted). The Court further stated that \u201c[w]hen an activity is arguably subject to \u00a7 7 or \u00a7 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.\u201d Id. at 245, 3 L. Ed. 2d at 783. The Court further explained that \u201c[t]o require the States to yield to the primary jurisdiction of the National Board does not ensure Board adjudication of the status of a disputed activity!,]\u201d and\n[i]f the Board decides, subject to appropriate federal judicial review, that conduct is protected by \u00a7 7, or prohibited by \u00a7 8, then the matter is at an end, and the States are ousted of all jurisdiction. Or, the Board may decide that an activity is neither protected nor prohibited, and thereby raise the question whether such activity may be regulated bythe States. However, the Board may also fail to determine the status of the disputed conduct by declining to assert jurisdiction, or by refusal of the General Counsel to file a charge, or by adopting some other disposition which does not define the nature of the activity with unclouded legal significance. ... It follows that the failure of the Board to define the legal significance under the Act of a particular activity does not give the States the power to act.\nId. at 245-46, 3 L. Ed. 2d at 783-84 (footnote omitted). The Court also delineated two exceptions when state law is not preempted by the NLRA: (1) \u201cwhere the activity regulated was a merely peripheral concern of the Labor Management Relations Act[;]\u201d or (2) \u201cwhere the regulated conduct 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.\u201d Id. at 243-44, 3 L. Ed. 2d at 782.\nIn subsequent cases, the Court has held that \u201cthe 1Garmon guidelines [are not to be applied] in a literal, mechanical fashion[,]\u2019 \u201d Local 926, Int\u2019l Union of Operating Eng\u2019rs v. Jones, 460 U.S. 669, 676, 75 L.Ed. 2d 368, 375-76 (1983) (quoting citing Sears v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 188, 56 L. Ed. 2d 209, 220 (1978)), and \u201cthose claiming pre-emption must carry the burden of showing at least an arguable case before the jurisdiction of a state court will be ousted.\u201d International Longshoremen\u2019s Asso. v. Davis, 476 U.S. 380, 396, 90 L. Ed. 2d 389, 404 (1986). The Court further explained that\n[t]he precondition for pre-emption, that the conduct be \u201carguably\u201d protected or prohibited, is not without substance. It is not satisfied by a conclusory assertion of pre-emption .... If the word \u201carguably\u201d is to mean anything, it must mean that the party claiming pre-emption is required to demonstrate that his case is one that the Board could legally decide in his favor. That is, a party asserting pre-emption must advance an interpretation of the Act that is not plainly contrary to its language and that has not been \u201cauthoritatively rejected\u201d by the courts or the Board. Marine Engineers v. Interlake S. S. Co., 370 U.S. 173, 184, 8 L. Ed. 2d 418, 82 S. Ct. 237 (1962). The party must then put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation.\nId. at 344-45, 90 L. Ed. 2d at 403. The Court has further noted that NLRA \u201c[p]re-emption ... is designed to shield the system from conflicting regulation of conduct. It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern.\u201d Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 292, 29 L. Ed. 2d 473, 486 (1971). Accordingly, in addressing plaintiffs\u2019 arguments, we \u201c[f]irst... 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.\u201d Jones, 460 U.S. at 676, 75 L. Ed. 2d at 375 (citing Garmon, supra, at 245 and Sears, supra, at 187-190). Here, there was action from the NLRB, as there was \u201ca settlement agreement approved by a Regional Director of the National Labor Relations Board[,]\u201d but nothing in the settlement agreement or defendant CWA Local 3602\u2019s 17 July 2008 letter to the nonunion employees indicates that the Board made a substantive conclusion or determination regarding plaintiffs\u2019 NLRB claim. Therefore, we cannot say that \u201cthe Board decide[d] . . . that [the alleged] conduct [was] protected by \u00a7 7, or prohibited by \u00a7 8[,]\u201d and the State is \u201cousted of all jurisdiction.\u201d See Garmon, 359 U.S. at 245, 3 L. Ed. 2d at 783. Likewise, there is no indication in the record that the Board made a determination that the alleged conduct by defendants was \u201cneither protected nor prohibited\u201d by the NLRA. See id. But, as noted by Garmon, it appears that the Board \u201cfail[ed] to determine the status of the disputed conduct by... adopting some other disposition which does not define the nature of the activity with unclouded legal significance [,]\u201d see id. at 245-46, 3 L. Ed. 2d at 783, specifically the voluntary settlement agreement. Accordingly, we turn to see whether the alleged conduct by defendants was \u201carguably protected or prohibited by the NLRA[,]\u201d see Jones, 460 U.S. at 676, 75 L. Ed. 2d at 375, by determining whether defendants as \u201cthe parties] claiming pre-emption\u201d made an NLRA argument that the \u201cBoard could legally decide in [their] favor.\u201d See Davis, 476 U.S. at 395, 90 L. Ed. 2d at 403.\nHere, defendants contend that plaintiffs\u2019 state claims under the North Carolina Identity Theft Protection Act and for unfair and deceptive trade practices are arguably preempted by the NLRA. Defendant\u2019s note that NLRA Section 7, 29 U.S.C. \u00a7 157 \u201cprotects an individual\u2019s right to refrain from union organizing, union membership, and other union activites[,]\u201d and NLRA Section 8(b), 29 U.S.C. \u00a7 158(b), \u201cprohibits a union from restraining or coercing employees in the exercise of their Section 7 rights.\u201d Defendants contend that the alleged conduct on which plaintiffs based their State claims, posting the social security numbers of those who had withdrawn their membership in the union, could be viewed as a retaliatory action by defendants which would potentially expose those former union members to identity theft and could discourage members from exercising their NLRA rights. Therefore, defendants conclude, the alleged conduct would be arguably prohibited by sections 7 and 8 of the NLRA.\nThe relevant portions of Section 7 of the NLRA states that\n[ejmployees shall 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, and shall 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 as authorized in section 8(a)(3) [29 USCS \u00a7 158(a)(3)],\n29 U.S.C. \u00a7 157 (2009) (emphasis added). Additionally, Section 8 of the NLRA, titled \u201cUnfair labor practices by labor organization[,]\u201d states in pertinent part, the following:\n(b) It shall be an unfair labor practice for a labor organization or its agents\u2014\n(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section [7] of this title[, USCS \u00a7 157] [.]\n29 U.S.C. \u00a7 158(b) (2009) (emphasis added). The NLRB has noted that \u201c[i]t is well settled that threats designed to restrain or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act constitute a violation of Section 8(b)(1)(A).\u201d United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, et al., 237 N.L.R.B. 207, 210 (1978). The NLRB has further stated that \u201cSection 7 affords employees the right to resign from union membership at any time, and that this right cannot lawfully be restricted by the union.\u201d Int\u2019l Bhd. of Teamsters, Local Union 492, 346 N.L.R.B. 360, 363 (citing Machinists Local 1414 (Neufeld Porsche-Audi), 270 N.L.R.B. 1330, 1336 (1984), approved in Pattern Makers League v. NLRB, 473 U.S. 95, 87 L. Ed. 2d 68 (1985)). After reviewing the relevant portions of the above quoted law, we cannot say that defendants\u2019 argument is \u201cplainly contrary to [the] language\u201d of the NLRA or has \u201cbeen \u2018authoritatively rejected\u2019 by the courts or the Board.\u201d See Davis, 476 U.S. at 395, 90 L. Ed. 2d at 403. We also note that this is exactly the legal basis which the plaintiffs themselves asserted in their complaints filed with the NLRB against defendant CWA Local 3602. Accordingly, we turn to see if defendants \u201cput forth enough evidence to enable the court to find that the Board reasonably could uphold a claim\u201d supporting defendants\u2019 argument that the alleged conduct was preempted by the NLRA. See id.\nThe record shows that employees of defendants CWA and CWA District 3 generated and distributed spreadsheet lists of those nonunion members who had dropped their union membership in 2007 to CWA Local 3602. Those employees of defendants CWA and CWA District 3 were aware that the national ID on the spreadsheet was the non-members\u2019 social security number. On 7 October 2007, defendant CWA Local 3602 president John Glenn received from CWA District 3 and posted a spreadsheet containing the names and social security numbers of plaintiffs and others that had withdrawn their union membership in 2007. Defendant CWA District 3 vice-president, Noah Savant, stated in his deposition that CWA encouraged the local unions to organize the nonmembers and the information in the spreadsheet could be used by members \u201cto contact these [non]members to find out.. . why they withdrew from the union and see if they can get them to rejoin.\u201d As plaintiffs\u2019 NLRB complaint notes, it is well known that a stolen or misappropriated social security number can result in identity theft causing financial hardship or ruin. The posting of an individual\u2019s social security number by any former representative, such as a union, could be viewed by an individual as potentially harmful because of the danger of identity theft; plaintiffs themselves viewed the posting of the numbers in just this manner. As plaintiffs\u2019 names alone would be sufficient to inform the union members about their fellow employees\u2019 nonmember status, the inclusion of plaintiffs\u2019 social security numbers in the spreadsheet that was posted on a union bulletin board could have been viewed by plaintiffs as punishment for exercising their Section 7 rights to withdraw their union membership and act as a restraint on other members considering exercising their Section 7 right. Therefore, we hold that \u201cthe Board reasonably could uphold a claim based on . . . [defendant\u2019s] interpretation[,]\u201d see Davis, 476 U.S. at 394, 90 L. Ed. 2d at 403, and, accordingly, the conduct alleged is \u201carguably subject to \u00a7 7 or \u00a7 8 of the Act[.]\u201d See Garmon, 359 U.S. at 245, 3 L. Ed. 2d at 783. Consequently, allowing plaintiffs\u2019 state claims to proceed would \u201cinvolve[] too great a danger of conflict between power asserted by Congress and requirements imposed by state law[,]\u201d see id,., at 245-46, 3 L. Ed. 2d at 783-84, and, contrary to plaintiffs\u2019 arguments, would violate national labor policy. Thus, plaintiffs\u2019 state claims are preempted by the NLRA.\nPlaintiffs further contend that Garmon preemption is not triggered by a prior NLRB action, as the NLRB\u2019s General Counsel did not interview plaintiffs and did not make a determination as to whether defendants\u2019 conduct was prohibited by NLRA sections 7 and 8. Plaintiffs also argue that \u201cGarmon does not hold that when the NLRB\u2019s General Counsel takes or refuses to take action, or imposes a settlement on a case having found no violation, all subsequent state remedy will be preempted.\u201d As noted by the above analysis, the \u201cprior NLRB action,\u201d the settlement agreement, is relevant in determining whether the Board decided that defendants\u2019 \u201cconduct [was] protected by \u00a7 7, or prohibited by \u00a7 8[,]\u201d whether the Board decided that defendants\u2019 conduct was \u201cneither protected nor prohibited,\u201d or whether \u201cthe Board . . . failfed] to determine the status of the disputed conduct. . . by adopting some other disposition which does not define the nature of the activity with unclouded legal significance.\u201d Garmon, 359 U.S. at 245-46, 3 L. Ed. 2d at 783. Here, the settlement agreement showed that the Board did not make a definite decision regarding whether defendants\u2019 conduct was protected or prohibited by the NLRA but \u201cadopt[ed] some other disposition^]\u201d namely the settlement agreement. See id. As a result, the focus of the analysis is to determine whether plaintiffs\u2019 claims were \u201carguably\u201d preempted by the NLRA, as defendants contend, see id. at 245, 3 L. Ed. 2d at 783, and specifically, whether defendants \u201cput forth enough evidence to enable the court to find that the Board reasonably could uphold\u201d a NLRA claim based on defendants\u2019 argument. See Davis, 476 U.S. at 395, 90 L. Ed. 2d at 403. Therefore, contrary to plaintiffs argument, the focus of the analysis in determining whether plaintiffs\u2019 claims were preempted is not whether the NLRB actually took action on their claims, but instead concerns the evaluation of the evidence put forward by defendants in support of their argument. Accordingly, plaintiffs\u2019 argument is overruled.\nPlaintiffs also contend that \u201cGarmon preemption is only proper when there is an actual or potential conflict of legal schemes whereby a state seeks to regulate conduct arguably protected or prohibited under the NLRA[,]\u201d and here \u201cthe regulated activity is a business\u2019s misuse of citizens\u2019 personal information. . . . not, as in Garmon, a local interpretation of the NLRA.\u201d As noted above, \u201c[i]t is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern.\u201d Lockridge, 403 U.S. at 292, 29 L. Ed. 2d at 473. Plaintiffs also attempt to differentiate their NLRB claim from their state claims by arguing that their state claims are based only on the posting of their social security numbers, without considering that it was defendant CWA Local 3602\u2019s president who posted the social security numbers. From the record, it is clear that plaintiffs\u2019 NLRB claim was based on defendant CWA Local 3602\u2019s posting of their social security numbers and plaintiffs alleged that this conduct was a violation of the NLRA. Similarly, plaintiffs\u2019 state claims are against defendant CWA Local 3602, a union, and it is defendant CWA Local 3602\u2019s action-posting the social security numbers of nonmembers \u2014 that forms the basis for plaintiffs\u2019 state claims. Therefore, the same conduct is the basis for both the NLRB and state claims. Accordingly, plaintiffs\u2019 arguments are overruled.\nB. Garmon Exceptions\nPlaintiffs, in the alternative, contend that the two Garmon exceptions are applicable. Defendants counter that neither of the Garmon exceptions are applicable in this case. As noted above, the Court in Garmon delineated two exceptions to the above analysis when state law is not preempted by the NLRA: (1) \u201cwhere the activity regulated was a merely peripheral concern of the Labor Management Relations Act[;]\u201d or (2) \u201cwhere the regulated conduct 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.\u201d 359 U.S. at 243-44, 3 L. Ed 2d at 782.\n1. Peripheral to the NLRA Policy\nPlaintiffs, citing Linn v. United Plant Guard Workers of America, Local 114, et al., 383 U.S. 53, 15 L. Ed. 2d 582 (1966) and R.H. Boulingny, Inc. v. United Steelworkers of America, AFL-CIO, 270 N.C. 160, 154 S.E.2d 344 (1967), argue that \u201cthe conduct the state seeks to regulate \u2014 custody of sensitive personal information \u2014 is clearly of peripheral concern to the NLRA[,]\u201d and the Garmon exception applies. Plaintiffs further contend that \u201cthe conduct in question was peripheral to national labor policy, since that policy is not concerned with the unions\u2019 handling of sensitive personal information of represented employees.\u201d Defendants counter that the holdings in Linn and R.H. Boulingny were limited to \u201cdefamation claims pleading and proving actual malice and damages[.]\u201d The United States Supreme Court has stated that \u201c[i]f an activity were merely a \u2018peripheral concern\u2019 of the Act, state and federal courts presumably may restrain it even if arguably protected.\u201d Sears, 436 U.S. at 223, n.7, 56 L. Ed. 2d at 242, n.7 (citing Garmon, 359 U.S. at 246, 3 L. Ed. 2d at 775).\nIn Linn, the Court applied this exception to the plaintiff-employer\u2019s state action against the defendant union for libel, holding that \u201cwhere either party to a labor dispute circulates false and defamatory statements during a union organizing campaign, the court does have jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice and injured him.\u201d 383 U.S. at 55, 15 L. Ed. 2d at 586. The Court noted that \u201calthough the Board tolerates intemperate, abusive and inaccurate statements made by the union during attempts to organize employees, it does not interpret the Act as giving either party license to injure the other intentionally by circulating defamatory or insulting material known to be false.\u201d Id. at 61, 15 L. Ed. 2d at 589. The Court reasoned that\n[t]he 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 \u00a7 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\u2019s reputation \u2014 whether he be an employer or union official \u2014 has no relevance to the Board\u2019s function. Cf. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261 (1940). The Board can award no damages, impose no penalty, or give any other relief to the defamed individual.\nId. at 63, 15 L. Ed. 2d at 590. The .Court further noted that \u201c[t]he Board\u2019s lack of concern with the \u2018personal\u2019 injury caused by malicious libel, together with its inability to provide redress to the maligned party, vitiates the ordinary arguments for pre-emption.\u201d Id. at 64, 15 L. Ed. 2d at 590. Because of the issue of juries \u201cawarding] excessive damages for defamation[,]\u201d and \u201cthe stability of labor unions and smaller employers[,]\u201d the Court in \u201crecognition of legitimate state interests does not interfere with effective administration of national labor policy\u201d and limited \u201cthe availability of state remedies for libel to those instances in which the complainant can show that the defamatory statements were circulated with malice and caused him damage.\u201d Id. at 64-65, 15 L. Ed. 2d at 591.\nOur Supreme Court in R.H. Boulingny, Inc., addressed the issue of NLRA preemption and summarized the United States Supreme Court\u2019s application of the \u201cperipheral concern\u201d exception in Linn to the plaintiff-business\u2019s state defamation claim against the defendant-union. 270 N.C. 160, 154 S.E.2d 344.\n[I]t has been determined by the final authority upon the construction of acts of Congress that the National Labor Relations Act does not take from the courts of this State jurisdiction to entertain and to determine, according to the law of this State, actions for damages for libel punished by a union during the course of its campaign to solicit members and become the spokesman for the employees of an industrial plant in their collective bargaining with their employer. It has, however, been so determined that in such an action the courts of this State may not apply the doctrine of libel per se. Judgment for the plaintiff in such an action may be rendered only if the plaintiff alleges and proves not only the actual malice sufficient to overcome the qualified privilege allowed the union by the law of this State but also some actual damage resulting from the libelous publication. With this modification, the rules of law applicable to the trial of suits for libel generally in the courts of this State are presently applicable to the trial of such an action against a labor union for libel published by it during the course of a campaign to organize workers in an industrial plant.\nId. at 176, 154 S.E.2d at 357-58. We find that Linn and R.H. Boulingny, Inc. are distinguishable from the case before us. First, the case before us involves plaintiffs\u2019 claims for violation of the Identity Theft Protection Act and unfair and deceptive trade practices, not a defamation claim. Even if the potential for identity theft could be considered as similar to defamation, in that it could cause injury to a person\u2019s reputation or credit rating, we note that even in the case of defamation, the exception applies \u201conly if the plaintiff alleges and proves not only the actual malice sufficient to overcome the qualified privilege allowed the union by the law of this State but also some actual damage resulting from the libelous publication.\u201d See R.H. Boulingny, Inc., 270 N.C. at 176, 154 S.E.2d at 358. In this case, even if we were to assume that defendants\u2019 action in posting the numbers was malicious, plaintiffs have not alleged that any actual damages resulted from the posting. In fact, the list was only posted for less than an hour before it was removed and there is no indication that any plaintiff has actually suffered from identify theft as a result of the posting. Additionally, we cannot say that the Board had a \u201clack of concern with the \u2018personal\u2019 injury caused by\u201d defendants\u2019 action or the Board had an \u201cinability to provide redress to the maligned party,\u201d which would \u201cvitiate[] the ordinary arguments for pre-emption.\u201d Linn, 383 U.S. at 64, 15 L. Ed. 2d at 590. As the settlement agreement shows, the NLRB was concerned with the alleged conduct of defendants and provided a remedy for the parties in the form of an approved settlement agreement. As these cases are distinguishable, we are not persuaded by plaintiffs\u2019 arguments.\n2. Significant Local Interests\nPlaintiffs citing Belknap v. Hale, 463 U.S. 491, 77 L. Ed. 2d 798 (1983), General Electric Co. v. Local 182 Int\u2019l Union of Electrical, Radio, and Machine Works, et al., 47 N.C. App. 153, 266 S.E.2d 750 (1980), and Farmer v. United Broth. of Carpenters and Joiners of America, Local 25, 430 U.S. 290, 51 L. Ed. 2d 338 (1977), argue that \u201ceven if the NLRB process had found the posting of the Social Security numbers an NLRA violation, preemption would not have been appropriate because North Carolina has a strong interest in protecting its citizens from the egregious and illegal conduct alleged in the Compliant.\u201d\nPlaintiffs further contend that \u201c[i]dentity theft is an issue which the state has a strong interest in regulating in order to protect the public welfare[,]\u201d and like the actions in Farmer, Belknap, and General Electric, which \u201cconcerned conduct which could arguably have been prohibited or protected by the NLRA[,]\u201d the conduct here should not be preempted \u201cbecause of the predominating local interest.\u201d Plaintiffs further contend that \u201cthe State of North Carolina may regulate certain outrageous conduct, even as it relates to labor unions[,]\u201d and \u201cthe Defendants\u2019 total disregard for the privacy of citizens\u2019 social security number[s]\u201d is an example of such conduct. Defendants\u2019 counter that the cases cited by plaintiffs are inapplicable and, therefore, this Garmon exception is also inapplicable to the facts before us.\nIn Farmer, the Court applied the \u201clocal interest\u201d exception in Garmon and held that the plaintiff union members\u2019 state claim for intentional infliction of emotional distress against the defendant union were not preempted. 430 U.S. 290, 51 L. Ed. 2d 338. In Farmer, the Court stated \u201cthat inflexible application of the [Garmon] doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State\u2019s interest is one that does not threaten undue interference with the federal regulatory scheme.\u201d Id. at 302, 51 L. Ed. 2d at 351. The Court noted that the plaintiff-member had \u201calleged that the defendants had intentionally engaged in \u2018outrageous conduct, threats, intimidation, and words\u2019 which caused [him] to suffer \u2018grievous mental and emotional distress as well as great physical damage.\u2019 \u201d Id. at 301, 51 L. Ed. 2d at 351. The Court reasoned that \u201cthere 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[,]\u201d and, therefore, \u201cpermitting the exercise of state jurisdiction over such complaints does not result in state regulation of federally protected conduct.\u201d Id. at 302, 51 L. Ed. 2d at 351 (citation and quotation marks omitted). The Court further noted that \u201c[t]he State . . . has a substantial interest in protecting its citizens from the kind of abuse of which [the plaintiff-member] complained.\u201d Id. at 302, 51 L. Ed. 2d at 351. The Court then balanced \u201cthe discrete concerns of the federal scheme and the state tort law\u201d and the Board\u2019s inability to address the conduct the plaintiff-member alleged:\nIf the charges in [the plaintiff-member\u2019s] complaint were filed with the Board, the focus of any unfair labor practice proceeding would be on whether the statements or conduct on the part of union officials discriminated or threatened discrimination against him in employment referrals for reasons other than failure to pay Union dues. . .. Whether the statements or conduct of the respondents also caused [the plaintiff-member] severe emotional distress and physical injury would play no role in the Board\u2019s disposition of the case, and the Board could not award [the plaintiff-member] damages for pain, suffering, or medical expenses. Conversely, the state-court tort action can be adjudicated without resolution of the \u201cmerits\u201d of the underlying labor dispute.\nId. at 304, 15 L. Ed. 2d at 352-53. The Court then held that the plaintiff-member\u2019s claims for intentional infliction of emotional distress were not preempted by the NLRA, noting that \u201c[o]urdecision rests in part on our understanding that California law permits recovery only for emotional distress sustained as a result of \u2018outrageous\u2019 conduct.\u201d Id. at 305, 15 L. Ed. 2d at 353.\nIn Belknap, the Court applied the \u201clocal interest\u201d exception in Garmon and held that the plaintiffs\u2019 state misrepresentation and breach of contract claims against the defendant employer were not preempted by the NLRA. 463 U.S. 491, 77 L. Ed. 2d 798. In Belknap, the defendant-employer had promised permanent employment to plaintiffs, a group of employees hired to replace striking union employees. Id. at 494-95, 77 L. Ed. 2d at 804-05. A NLRB claim was filed and pursuant to a settlement agreement with the union, defendant-employer rehired the striking union employees and laid off the plaintiffs. Id. at 446, 77 L. Ed. 2d at 805. In response, the plaintiffs filed a state claim for misrepresentation and breach of contract against the defendant-employer, alleging that it had made assertions about permanent employment that were false and the plaintiffs had relied on those assertions. Id. at 496-97, 77 L. Ed. 2d at 805. The plaintiffs\u2019 claim was dismissed pursuant to the defendant\u2019s motion for summary judgment based on NLRA preemption; the state court of appeals reversed; and the United States Supreme Court granted the defendant\u2019s writ of certiorari. Id. at 497, 77 L. Ed. 2d at 806. Citing its prior ruling in Sears, 436 U.S. 180, 56 L. Ed. 2d 209, the Court noted that\na critical inquiry in applying the Garmon rules, where the conduct at issue in the state litigation is said to be arguably prohibited by the Act and hence within the exclusive jurisdiction of the NLRB, is whether the controversy presented to the state court is identical with that which could be presented to the Board.\nId. at 510, 77 L. Ed. 2d at 814. The Court stated that in applying the \u201clocal interest\u201d exception\nthe State\u2019s interest in controlling or remedying the effects of the conduct is balanced against both the interference with the National Labor Relations Board\u2019s ability to adjudicate controversies committed to it by the Act, Farmer v. Carpenters, supra, at 297; Sears, Roebuck & Co. v. Carpenters, 436 U.S., at 200, and the risk that the State will sanction conduct that the Act protects.\nId. at 498-99, 77 L. Ed. 2d at 807. In applying this balancing test, the Court noted that any NLRB action in regard to the alleged conduct would be focused on \u201cwhether the rights of strikers were being infringed\u201d not \u201cwhether [the defendant-employer] made misrepresentations to replacements that were actionable under state law.\u201d Id. at 510, 77 L. Ed. 2d at 814. Accordingly, the Court stated \u201cthat maintaining the misrepresentation action would not interfere with the Board\u2019s determination of matters within its jurisdiction and that such an action is of no more than peripheral concern to the Board and the federal law[,]\u201d and the state had \u201ca substantial interest in protecting its citizens from misrepresentations that have caused them grievous harm.\u201d Id. at 510-11, 77 L. Ed. 2d at 814. The Court concluded that as the plaintiffs\u2019 state claims had \u201cno relevance to the [NLRB]\u2019s function\u201d and the NLRB could \u201caward no damages, impose no penalty, or give any other relief\u2019 for their state claims, \u201cstate interests involved in this case clearly outweigh any possible interference with the Board's function that may result from permitting the action for misrepresentation to proceed.\u201d Id. at 511, 77 L. Ed. 2d at 815 (citation and quotation marks omitted).\nAs to the plaintiffs\u2019 breach of contract claim, the Court noted that defendants\u2019 actions in response to the settlement agreement did \u201cnot immunize [the defendant-employer] from responding in damages for its breach of its otherwise enforceable contracts.\u201d Id. at 512, 77 L. Ed. 2d at 815. Even if there had been no settlement and the Board had ordered reinstatement of the striking union employees, \u201cthe suit for damages for breach of contract could still be maintained without in any way prejudicing the jurisdiction of the Board or the interest of the federal law in insuring the replacement of strikers.\u201d Id. In turn, the Court concluded that \u201c[w]e see no basis for holding that permitting the contract cause of action will conflict with the rights of either the strikers or the employer or would frustrate any policy of the federal labor laws.\u201d Id. at 512, 77 L. Ed. 2d at 815-16. The Court further concluded that neither of the plaintiffs\u2019 state claims were preempted by the NLRA. Id. at 512, 77 L. Ed. 2d at 816.\nThe third case cited by plaintiffs in support of their argument, General Electric Co. v. Local 182 Int\u2019l Union of Electrical, Radio, and Machine Works, et al., 47 N.C. App. 153, 266 S.E.2d 750, involved the determination of whether a state claim for injunctive relief to enjoin defendant union\u2019s picketing which was \u201cimpeding the flow of traffic,\u201d and those involved where alleged to have \u201cengaged in other illegal and violent acts[,]\u201d such as \u201cdamaged vehicles entering the plant, thrown rocks and threatened nonunion employees.\u201d On appeal from a trial court\u2019s permanent injunction against the defendant union, this Court noted that\n[t]he State is not preempted by the National Labor Relations Act from exercising its historic powers of maintaining peace and order within its jurisdiction and protecting its citizens in the free, rightful and safe use of the public roads and highways. The courts of a state cannot regulate orderly and peaceful picketing. But, where picketing results in heavy traffic congestion, damage to property and threats of physical violence as occurred in this case, the State courts have the power to enforce the laws of this State which protect the public welfare and to enjoin acts of violence and civil disobedience.\nId. at 157, 266 S.E.2d at 753. The Court then concluded that \u201cThe trial court and consequently this Court has jurisdiction in this case of threatened and actual violence where the picketing could not be characterized as peaceful.\u201d Id.\nIn addition to the state claims in Fanner for intentional infliction of emotional distress and in Belknap for misrepresentation and breach of contract, the \u201clocal interest\u201d exception has been also applied to prohibit NLRA preemption of a state trespass claim, Sears, 436 U.S. 180, 56 L. Ed. 2d 209, and for malicious interference with a lawful occupation, Automobile Workers v. Russell, 356 U.S. 634, 2 L. Ed. 2d 1030 (1958). However, plaintiffs here brought claims for a violation of the Identity Theft Protection Act and for unfair and deceptive trade practices. Therefore, the specific reasoning in Farmer, which was based on the plaintiffs\u2019 allegation of \u201coutrageous conduct\u201d by defendants is not applicable to the facts before us. Also, in balancing the State\u2019s interest in controlling or remedying the effects of the conduct against both the interference with the National Labor Relations Board\u2019s ability to adjudicate controversies committed to it by the Act and the risk that the State will sanction conduct that the Act protects, as prescribed by Farmer and Belknap, we agree that the state has an interest in protecting its citizens from identity theft and from unfair and deceptive trade practices as the result of purposeful or negligent dissemination of social security numbers. However, in examining the \u201ccritical inquiry\u201d of \u201cwhether the controversy presented to the state court is identical with that which could be presented to the Board[,]\u201d Belknap, 463 U.S. at 510, 77 L. Ed. 2d at 814, we note that, unlike Belknap, plaintiffs presented the same controversy \u2014 defendant CWA Local 3602\u2019s posting of plaintiffs\u2019 social security numbers- \u2014 in their state claims as they alleged in their NLRB claims. As noted above, the NLRB settlement stated that defendant CWA Local 3602 would not post non-union members social security numbers on its bulletin board, but a state trial court could potentially, based on the same conduct, hold that labor union defendant CWA Local 3602\u2019s actions were not prohibited by state law and that it is free to post social security numbers as part of the union\u2019s business in recruiting former members back into the union. Accordingly, there is a danger that a state claim would interfere with the NLRB\u2019s ability to adjudicate this controversy. Therefore, the NLRB\u2019s interest in adjudicating controversies committed to it by the NLRA outweighs the State\u2019s interests. Thus, the \u201clocal interest\u201d exception is inapplicable to the facts before us.\nFinally, unlike General Electric Co., plaintiffs make no allegations of \u201cacts of violence and civil disobedience\u201d See id. at 157, 266 S.E.2d at 753, that would justify the application of that case to the facts before us. Although plaintiffs alleged potential harm from the posting of the list, as noted above, no actual harm occurred. Accordingly, we find that none of the Garmon exceptions are applicable in this case. We conclude that the trial court correctly determined that plaintiffs\u2019 claims are preempted by the NLRA and affirm the trial court\u2019s order granting defendants\u2019 motion for summary judgment and dismissing plaintiffs\u2019 claims.\nAFFIRMED.\nJudges BRYANT and BEASLEY concur.\n. Carolyn Boggs and Daniel Case, individual plaintiffs in the original and amended complaints, are not parties to this appeal.\n. The Court in Local 926, Int\u2019l Union of Operating Eng\u2019rs, 460 U.S. at 676, n.8, 75 L. Ed. 2d at 376, n.8, noted another established exception to federal preemption, but this exception is not relevant in this case: \u201cThe NLRA has been held to pre-empt state law and state causes of action relating to conduct that is neither protected nor prohibited, where it is determined that Congress intended the conduct to be unregulated and left to the free play of economic forces. See Machinists v. Wisconsin Employment Relations Comm\u2019n, 427 U.S. 132, 140, 49 L. Ed. 2d 396 (1976); Teamsters v. Morton, 377 U.S. 252, 260, 9 L. Ed. 2d 732 (1964).\u201d\n. As we found that plaintiffs\u2019 claims were preempted by the NLRA, we need not address defendants\u2019 arguments as to the preemption by the duty of fair representation.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "National Right To Work Legal Defense Foundation, by Matthew C. Muggeridge and Stephen J. Dunn, for plaintiffs-appellants.", "Patterson Harkavy LLP, by Ann E. Groninger and Quinn, Walls, Weaver & Davies LLP, by Robert M. Weaver, for defendants-appellees." ], "corrections": "", "head_matter": "JASON FISHER, BYRON ADAMS, B.C. BARNES, CHERYL BARTLETT, KATHY BEAM, CAROLYN BOGGS, SUSETTE BRYANT, DANNY CASE, GENE DRY, RICKY GRIFFIN, WENDY HERNDON, EVERETT JENKINS, SANDRA LANGSTON, CYNTHIA STAFFORD, MARY TAUTIN, and TIMOTHY THOMAS, Plaintiffs v. COMMUNICATION WORKERS OF AMERICA, COMMUNICATION WORKERS OF AMERICA, DISTRICT 3 and COMMUNICATION WORKERS OF AMERICA LOCAL 3602, Defendants\nNo. COA10-927\n(Filed 16 August 2011)\n1. Conflict of Laws \u2014 withdrawn union memberships \u2014 names and social security numbers posted \u2014 federal preemption\nPlaintiffs\u2019 claims under the North Carolina Identity Theft Protection Act and for unfair and deceptive trade practices were preempted by the National Labor Relations Act where employees of defendants generated and distributed lists of members who had dropped their union membership with their social security numbers. Names alone would have been sufficient to inform union members about their fellow employees\u2019 nonmember status and the inclusion of social security numbers could have been viewed by plaintiffs as a punishment and as a restraint on others exercising their labor rights.\n2.Conflict of Laws \u2014 withdrawn union memberships \u2014 personal information posted \u2014 subject of federal claim\nThe preemption of state claims by the National Labor Relations Act, as set out in San Diego Building Trades Council v. Garmon, 359 U.S. 236, places the focus on evaluation of defendant\u2019s evidence rather than whether the National Labor Relations Board (NLRB) actually took action on the claims. In this case, the same conduct was the basis for the NLRB and state claims and the Garmon preemption was proper.\n3. Conflict of Laws \u2014 preemption of state claims \u2014 peripheral conduct \u2014 exception not applicable\nThe exception to preemption of state claims by federal labor law for conduct peripheral to National Labor Relations Board (NLRB) policy did not apply to a case in which social security numbers were posted on a bulletin board along with the names of those withdrawing from a union. Plaintiffs did not allege that actual damages resulted from the posting, which only lasted for an hour, and the NLRB showed concern for the alleged conduct in the form of an approved settlement agreement.\n4. Conflict of Laws \u2014 preemption of state claims \u2014 significant local interest \u2014 exception not applicable\nThe exception to preemption of state claims by federal labor law for claims of significant local interest did not apply to a case in which social security numbers were posted on a bulletin board along with the names of those withdrawing from a union. The cases cited by plaintiffs were not applicable and the same controversy was alleged and resolved in NLRB claims, so that there was a danger that a state claim would interfere with the NLRB\u2019s interest in adjudicating the controversy.\nAppeal by plaintiffs from order entered on or about 7 May 2010 by Judge Albert Diaz in Special Superior Court for Complex Business Cases, Gaston County. Heard in the Court of Appeals 14 December 2010.\nNational Right To Work Legal Defense Foundation, by Matthew C. Muggeridge and Stephen J. Dunn, for plaintiffs-appellants.\nPatterson Harkavy LLP, by Ann E. Groninger and Quinn, Walls, Weaver & Davies LLP, by Robert M. Weaver, for defendants-appellees." }, "file_name": "0046-01", "first_page_order": 56, "last_page_order": 76 }