{ "id": 4250752, "name": "William R. HUMPHRIES, Plaintiff-Appellant, v. PAY AND SAVE, INC., a/k/a Lowe's Grocery # 55 and Tim Cotton, Defendants-Appellees", "name_abbreviation": "Humphries v. Pay & Save, Inc.", "decision_date": "2011-03-11", "docket_number": "No. 29,197", "first_page": "444", "last_page": "451", "citations": [ { "type": "official", "cite": "150 N.M. 444" }, { "type": "parallel", "cite": "261 P.3d 592" }, { "type": "parallel", "cite": "2011-NMCA-035" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "190 A.L.R. Fed. 323", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "year": 2003, "pin_cites": [ { "page": "\u00a7 26", "parenthetical": "discussing preemption of supervisor termination claims" } ], "opinion_index": 0 }, { "cite": "553 N.E.2d 1262", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 10989689 ], "pin_cites": [ { "page": "1264" } ], "opinion_index": 0, "case_paths": [ "/ne2d/553/1262-01" ] }, { "cite": "476 U.S. 380", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12628 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "394-95", "parenthetical": "holding that in order for NLRA preemption to apply, the claimant must have \"arguably\" been an employee covered by the NLRA" }, { "parenthetical": "holding that in order for NLRA preemption to apply, the claimant must have \"arguably\" been an employee covered by the NLRA" }, { "parenthetical": "holding that in order for NLRA preemption to apply, the claimant must have \"arguably\" been an employee covered by the NLRA" } ], "opinion_index": 0, "case_paths": [ "/us/476/0380-01" ] }, { "cite": "29 U.S.C. \u00a7 152", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "year": 1978, "pin_cites": [ { "page": "(3)", "parenthetical": "defining \"employee\"" }, { "page": "(11)", "parenthetical": "defining \"supervisor\"" }, { "page": "(11)" } ], "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7\u00a7 157-158", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "985 F.2d 1419", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10518649, 10518626 ], "opinion_index": 0, "case_paths": [ "/f2d/985/1419-02", "/f2d/985/1419-01" ] }, { "cite": "236 F.3d 1200", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11171546 ], "weight": 2, "pin_cites": [ { "page": "1214-15", "parenthetical": "affirming dismissal of claims for breach of contract, breach of duty of good faith and fair dealing, and defamation because of preemption, but reversing dismissal of claims for alleged civil conspiracy and retaliation, and intentional infliction of emotional distress" } ], "opinion_index": 0, "case_paths": [ "/f3d/236/1200-01" ] }, { "cite": "415 F.3d 1149", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 8948286 ], "opinion_index": 0, "case_paths": [ "/f3d/415/1149-01" ] }, { "cite": "512 U.S. 107", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39425 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "122-23" } ], "opinion_index": 0, "case_paths": [ "/us/512/0107-01" ] }, { "cite": "486 U.S. 399", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6218054 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "412", "parenthetical": "holding that state law claims for retaliatory discharge are preempted by Section 301 to the extent they require interpretation of a collective bargaining agreement" }, { "parenthetical": "holding that state law claims for retaliatory discharge are preempted by Section 301 to the extent they require interpretation of a collective bargaining agreement" }, { "parenthetical": "holding that state law claims for retaliatory discharge are preempted by Section 301 to the extent they require interpretation of a collective bargaining agreement" }, { "page": "401, 413" } ], "opinion_index": 0, "case_paths": [ "/us/486/0399-01" ] }, { "cite": "137 F.Supp.2d 1264", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11112117 ], "weight": 12, "pin_cites": [ { "page": "1265-66" }, { "page": "1266" }, { "page": "1266" }, { "page": "1265" }, { "page": "1265-66", "parenthetical": "citation omitted" }, { "page": "1265" }, { "page": "1266" }, { "page": "1267" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/137/1264-01" ] }, { "cite": "29 U.S.C. \u00a7 185", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2000, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "2002-NMCA-045", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260744 ], "weight": 12, "pin_cites": [ { "page": "\u00b6\u00b6 6-8" }, { "page": "\u00b6 6" }, { "page": "\u00b6 6" }, { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0119-01" ] }, { "cite": "1999-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257748 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 33-34" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0282-01" ] }, { "cite": "122 N.M. 2", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322285 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0002-01" ] }, { "cite": "1996-NMCA-067", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b68" } ], "opinion_index": 0 }, { "cite": "2002-NMCA-021", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183142 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0621-01" ] }, { "cite": "2007-NMCA-001", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670779 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0829-01" ] }, { "cite": "2008-NMCA-121", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4004249 ], "weight": 21, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6\u00b6 7-9" }, { "page": "\u00b6 29" }, { "parenthetical": "holding that state law claims for retaliatory discharge are preempted by Section 301 to the extent they require interpretation of a collective bargaining agreement" }, { "parenthetical": "holding that state law claims for retaliatory discharge are preempted by Section 301 to the extent they require interpretation of a collective bargaining agreement" }, { "page": "\u00b68" }, { "page": "\u00b6 8" }, { "page": "\u00b68" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0867-01" ] }, { "cite": "188 N.M. 70", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2005-NMCA-097", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2550406 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0070-01" ] }, { "cite": "2009-NMCA-056", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4244122 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0346-01" ] }, { "cite": "427 U.S. 132", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175136 ], "weight": 21, "year": 1976, "pin_cites": [ { "page": "140, 147" }, { "page": "140, 147" }, { "page": "136" }, { "page": "132" }, { "page": "140" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "147-48" }, { "page": "147" }, { "page": "147-51" } ], "opinion_index": 0, "case_paths": [ "/us/427/0132-01" ] }, { "cite": "416 U.S. 653", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84696 ], "weight": 20, "year": 1974, "pin_cites": [ { "page": "661-62" }, { "page": "661-62" }, { "page": "654-55" }, { "page": "656" }, { "page": "658" }, { "page": "661-62" }, { "page": "662" }, { "page": "661-62" } ], "opinion_index": 0, "case_paths": [ "/us/416/0653-01" ] }, { "cite": "29 U.S.C. \u00a7 158", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1974, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7 157", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "year": 1947, "opinion_index": 0 }, { "cite": "359 U.S. 236", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164086 ], "weight": 3, "year": 1959, "opinion_index": 0, "case_paths": [ "/us/359/0236-01" ] }, { "cite": "2006-NMCA-109", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671756 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 1, "case_paths": [ "/nm/140/0284-01" ] }, { "cite": "476 U.S. 380", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12628 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "397" } ], "opinion_index": 1, "case_paths": [ "/us/476/0380-01" ] }, { "cite": "137 F.Supp.2d 1264", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11112117 ], "pin_cites": [ { "page": "1267", "parenthetical": "concluding that where the plaintiff was arguably covered by provisions of the NLRA and his state law claim arguably fell within the core purposes of the NLRA, dismissal was appropriate because the state law claim was preempted by the NLRA" } ], "opinion_index": 1, "case_paths": [ "/f-supp-2d/137/1264-01" ] }, { "cite": "2008-NMCA-121", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4004249 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 9" } ], "opinion_index": 1, "case_paths": [ "/nm/144/0867-01" ] } ], "analysis": { "cardinality": 1127, "char_count": 28022, "ocr_confidence": 0.66, "pagerank": { "raw": 4.5046715916883656e-08, "percentile": 0.2823633733086369 }, "sha256": "8c61f4f18e7c521b62b30f511c0869c880441b3bb2aa95704fb7bce59dad7460", "simhash": "1:338aafc8cec3274e", "word_count": 4433 }, "last_updated": "2023-07-14T21:53:59.243869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL E. VIGIL, Judge and TIMOTHY L. GARCIA, Judge (specially concurring)." ], "parties": [ "William R. HUMPHRIES, Plaintiff-Appellant, v. PAY AND SAVE, INC., a/k/a Lowe\u2019s Grocery # 55 and Tim Cotton, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nKENNEDY, Judge.\n{1} Plaintiff William R. Humphries argues the district court improperly dismissed his claims. He alleged below that his employers Pay and Save, Inc., and Tim Cotton (collectively Defendants) improperly terminated his employment on suspicion that he engaged in union-organizing activities. The district court concluded that federal labor law preempted Plaintiff\u2019s claims. We agree and affirm.\nBACKGROUND\n{2} On May 13, 2008, Plaintiff filed a complaint in the district court seeking relief on six counts: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) negligent or intentional misrepresentation; (4) wrongful termination; (5) tortious interference with contractual relations (against Tim Cotton individually); and (6) declaratory relief. All counts relied on the same core of common facts. Specifically, Plaintiff alleged that until he was terminated on February 23, 2006, he had been employed as a produce manager for five years at Lowe\u2019s Grocery #55 in Alamogordo, New Mexico. Defendant Pay and Save, Inc., owns and operates Lowe\u2019s Grocery # 55, and Defendant Tim Cotton was the store manager at the time Plaintiff was terminated. Plaintiff alleged that although he had never been \u201creprimanded or disciplined ... in any manner,\u201d Defendants fired him because they \u201cbelieved [he] was involved in organizing the employees of Lowes.\u201d Plaintiff contended that termination in this manner was unjust and that Defendants\u2019 actions resulted in numerous injuries for which he sought compensation. Plaintiffs complaint for wrongful termination specifically asserted Defendants\u2019 violation of state public policy that encourages the right to form, join, organize, and collectively bargain as a member of a labor organization.\n{3} On July 7, 2008, Defendants filed a motion to dismiss the complaint. In pertinent part, they argued that pursuant to Rule 1 \u2014 012(B)(1) NMRA and Rule 1-012(B)(6) NMRA, the federal labor law vested the National Labor Relations Board (NLRB) with exclusive and primary jurisdiction over Plaintiffs claims. Citing San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), Defendants argued that the facts underlying Plaintiffs claims, if true, constituted an unfair labor practice under the National Labor Relations Act (NLRA), 29 U.S.C. \u00a7 157 (1947) and 29 U.S.C. \u00a7 158 (1974). As such, the claims were expressly preempted under longstanding Supreme Court precedent. Defendants further argued that if Plaintiff were to claim status as a \u201csupervisor\u201d outside the NLRA, his claims would still be preempted under the Supreme Court\u2019s holdings in Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653, 94 S.Ct. 2023, 40 L.Ed.2d 443 (1974), and Lodge 76, International Association of Machinists & Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations Commission, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). As an exhibit to their motion, Defendants included a photocopy of a retaliatory discharge claim Plaintiff made to the NLRB before filing the present complaint. Dated August 4, 2006, that claim describes Plaintiff\u2019s status as an \u201cemployee.\u201d Plaintiff argued in his response to the motion to dismiss that neither Garmon, Beasley, nor Machinists were dispositive. He instead contended that because his claims did not require interpretation of a collective bargaining agreement, preemption did not apply.\n{4} The district court held a hearing on Defendants\u2019 motion via conference call, and at its conclusion, the district court granted Defendants\u2019 motion on the basis of federal preemption. It found that each of Plaintiffs claims was based on Defendants alleged belief that Plaintiff \u201cwas engaged in union activity\u201d and found that claims involving termination for such activities constituted a \u201cfederal issue.\u201d\n{5} Plaintiff now appeals the district court\u2019s dismissal of his complaint. He contends that because his claims for breach of contract, breach of the covenant of good faith and fair dealing, misrepresentation, wrongful termination, and tortious interference do not originate in a collective bargaining agreement, they do not implicate federal labor law and are therefore not preempted. Plaintiff contends that because these claims are based exclusively on state law, they should be resolved in state court. He also argues that there is no reason why his other allegations cannot remain viable, even assuming his claim for wrongful termination is preempted. As such, Plaintiff contends the district court was incorrect in refusing jurisdiction of all counts in his complaint without considering each individually. We consider these arguments below.\nDISCUSSION\nA. Standard of Review\n{6} Motions to dismiss under Rule 1-012(B)(1) and (B)(6) are reviewed de novo. See Holguin v. Tsay Corp., 2009-NMCA-056, \u00b6 9, 146 N.M. 346, 210 P.3d 243 (\u201cWe review a district court\u2019s ruling on a Rule 1-012(B)(1) lack of subject matter jurisdiction issue de novo.\u201d); Healthsource, Inc. v. X-Ray Assocs. of N.M., P.C., 2005-NMCA-097, \u00b6 16, 138 N.M. 70, 116 P.3d 861 (\u201cA district court\u2019s decision to dismiss a complaint for failure to state a claim [under Rule 1-012(B)(6)] is reviewed de novo.\u201d). In such cases, we test \u201cthe legal sufficiency of the complaint, not the factual allegations of the pleadings!,] which ... the court must accept as true.\u201d Healthsource, Inc., 2005-NMCA-097, \u00b6 16, 188 N.M. 70, 116 P.3d 861. Likewise, this Court has applied a de novo standard to questions of federal preemption. Weise v. Wash. Tru Solutions, L.L.C., 2008-NMCA-121, \u00b6 9, 144 N.M. 867, 192 P.3d 1244; Hadrych v. Hadrych, 2007-NMCA-001, \u00b6 5, 140 N.M. 829, 149 P.3d 593.\nB. Federal Preemption Generally\n{7} Federal preemption derives from the Supremacy Clause of Article VI of the United States Constitution. Largo v. Atchison, Topeka, & Santa Fe Ry. Co., 2002-NMCA-021, \u00b6 6, 131 N.M. 621, 41 P.3d 347. The doctrine ensures uniformity in federal policies by protecting against the potentially dilutive effects of state legislation and judicial interpretation. Id. New Mexico\u2019s courts maintain a strong preference against the doctrine. Id. As a result, we apply it only in situations where Congress has announced a \u201cclear and manifest purpose\u201d for us to do so. Montoya v. Mentor Corp., 1996-NMCA-067, \u00b68, 122 N.M. 2, 919 P.2d 410 (internal quotation marks and citation omitted). Thus, congressional intent often arises in the heavily regulated landscape of federal labor law. Preemption may apply in a variety of ways and a few have been discussed by New Mexico\u2019s appellate courts in recent years. See, e.g., Mitchell-Carr v. McLendon, 1999-NMSC-025, \u00b6\u00b6 33-34, 127 N.M. 282, 980 P.2d 65 (analyzing preemption under the NLRA and Garmon); Weise, 2008-NMCA-121, \u00b6\u00b6 7-9, 144 N.M. 867, 192 P.3d 1244 (discussing preemption under both the NLRA and Section 301 of the LMRA); Kerschion v. Pub. Serv. Co. of N.M., 2002-NMCA-045, \u00b6\u00b6 6-8, 132 N.M. 119, 45 P.3d 59 (discussing preemption under Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. \u00a7 185(a) (2000)). This case requires us to consider three types of federal labor law preemption.\n{8} First, under Section 301 of the LMRA, federal courts maintain exclusive jurisdiction over all disputes requiring interpretation of a collective bargaining agreement. Kerschion, 2002-NMCA-045, \u00b6 6, 132 N.M. 119, 45 P.3d 59. Second, state courts may not adjudicate a matter that arguably falls under Sections 7 or 8 of the NLRA. Those sections prohibit several unfair labor practices, and Congress has vested the NLRB with exclusive jurisdiction to decide claims implicating them. Dominguez v. Excell Agent Sens., L.L.C., 137 F.Supp.2d 1264, 1265-66 (D.N.M.2001).\n{9} Third, in Machinists, the United States Supreme Court recognized that even though some labor practices fall outside the restrictions of Sections 7 and 8 of the NLRA, such practices were intentionally omitted by Congress for the benefit of parties engaged in labor negotiations. Practices of this type are \u201cweapons\u201d intended by Congress \u201cto be controlled by the free play of economic forces.\u201d Machinists, 427 U.S. at 140, 147, 96 S.Ct. 2548; see Beasley, 416 U.S. at 661-62, 94 S.Ct. 2023 (discussing the claims of supervisors, though specifically excluded from protection under the NLRA, may not be decided by state courts in the interest of uniform national labor policy). As such, the NLRB maintains exclusive jurisdiction over them also. Machinists, 427 U.S. at 140, 147, 96 S.Ct. 2548.\n{10} We consider each type of preemption below. While Plaintiff is correct that his claims are not preempted by Section 301 of the LMRA, we hold that his claims still fail under Garmon, Beasley or Machinists, regardless of whether we consider him an employee or a supervisor under the NLRA.\nC. Section 301 of the LMRA\n{11} Section 301 preemption applies where the scope of the parties\u2019 relationship is defined by either a collective bargaining agreement \u201cbetween an employer and a labor organization\u201d or a contract among labor organizations. Weise, 2008-NMCA-121, \u00b6 29, 144 N.M. 867, 192 P.3d 1244; see Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 412, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) (holding that state law claims for retaliatory discharge are preempted by Section 301 to the extent they require interpretation of a collective bargaining agreement). When a party\u2019s claim requires interpretation of such an agreement, the federal courts exercise exclusive jurisdiction. Lingle, 486 U.S. at 401, 413, 108 S.Ct. 1877; see Kerschion, 2002-NMCA-045, \u00b6 6, 132 N.M. 119, 45 P.3d 59 (stating that Section 301 preempts \u201cclaims raised in state court that require the interpretation or application of a collective-bargaining agreement\u201d). Section 301 provides that:\nSuits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.\n29 U.S.C. \u00a7 185(a). We have interpreted this language to forbid states from deciding matters under state law that are more appropriately analyzed under federal law as \u201cduties assumed in collective-bargaining agreements.\u201d Kerschion, 2002-NMCA-045, \u00b6 6, 132 N.M. 119, 45 P.3d 59 (quoting Livadas v. Bradshaw, 512 U.S. 107, 122-23, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994)). This process ensures state law will not frustrate Congressional intent by determining \u201cquestions [related] to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement.\u201d Id.\n{12} Plaintiff argues his claims are not preempted because his relationship with Defendants was not governed by a collective bargaining agreement. He cites Mowry v. United Parcel Service, 415 F.3d 1149 (10th Cir.2005), Garley v. Sandia Corp., 236 F.3d 1200 (10th Cir.2001), and Janis r. Nobel/Sysco Food Services Co., 985 F.2d 1419 (10th Cir.1993), for support. To the extent Section 301 preemption might apply in this case, Plaintiff is correct. Neither the pleadings nor the record alert the court to the existence of a collective bargaining agreement or a labor union among the employees at Pay and Save. In this context, Section 301 does not preempt Plaintiffs claims.\n{13} Yet, several types of federal preemption are applicable in the labor law context, and the absence of preemption under Section 301 does not void preemption from other sources. Plaintiff fails to analyze other types of preemption, specifically preemption under Garmon, Beasley, or Machinists. We now analyze Garmon, Beasley, and Machinists and conclude that Defendants\u2019 reading of the case law is consistent with our own.\nD. Garmon Preemption\n{14} In Weise, this Court analyzed Garmon preemption in detail. Under that doctrine, whenever a disputed activity \u201cis arguably subject to Section 7 or Section 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.\u201d Weise, 2008-NMCA-121, \u00b68, 144 N.M. 867,192 P.3d 1244 (alterations omitted) (internal quotation marks and citation omitted). In pertinent part, Section 7 of the NLRA provides that, \u201cEmployees 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.\u201d 29 U.S.C. \u00a7 157; see Weise, 2008-NMCA-121, \u00b6 8,144 N.M. 867, 192 P.3d 1244. Section 8 forbids several unfair labor practices, including: (1) interfering with an employee\u2019s rights under Section 7; (2) interfering with or dominating \u201cthe formation or administration of any labor organization\u201d; (3) basing hiring decisions on union membership; (4) terminating an employee for filing charges or giving testimony under the NLRA; and (5) refusing to bargain collectively with union representatives. 29 U.S.C. \u00a7 158(a); see Weise, 2008-NMCA-121, \u00b68, 144 N.M. 867, 192 P.3d 1244 (stating that preemption precludes consideration of Section 7 activities of the NLRA by state courts).\n{15} Garmon preemption functions to maintain a uniform national labor policy, but has several exceptions. Weise, 2008-NMCA-121, \u00b6 9, 144 N.M. 867, 192 P.3d 1244. For instance, states maintain jurisdiction over matters that present only \u201cperipheral concern[s] to the NLRA, such as slander by an employer or retaliation for filing a worker\u2019s compensation claim.\u201d Dominguez, 137 F.Supp.2d at 1266. States also maintain jurisdiction over claims involving acts of violence or disturbance, damage to property, and matters \u201cso deeply rooted in local feeling and responsibility that [it] could not [be inferred] that Congress had deprived the States of the power to act.\u201d Machinists, 427 U.S. at 136, 96 S.Ct. 2548 (internal quotation marks and citation omitted). The test for applying Garmon preemption has been described as \u201cwhether the substance of the dispute is the same under both the NLRA and state law.\u201d Dominguez, 137 F.Supp.2d at 1266. If so, the dispute must be heard by the NLRB. Id. Even in cases where it is unclear whether the NLRA prohibits the activity, \u201ccourts are not the primary tribunals to adjudicate the issue; instead, such a determination must be left in the first instance to the NLRB.\u201d Id. at 1265.\nIn other words, when an activity is arguably subject to Section 7 or 8 of the NLRA, state and federal courts must defer to the competence of the NLRB to avoid state interference with national labor policy. [The United States District Court] must first decide whether there is an arguable case for preemption; if there is, the Court must defer to the NLRB, and the Court may not entertain this case unless the NLRB has decided that the activity is not governed by Section 7 or 8.\nId. at 1265-66 (citation omitted).\n{16} The analysis in Dominguez aligns closely with the facts of the case before us. In Dominguez, the plaintiff filed suit under state law against his employer, alleging he was terminated for pro-union beliefs and past union activities. Id. at 1265. The employer filed a motion to dismiss on the basis of NLRA preemption, which the court granted. Id. The court concluded that, \u201cthe conduct that forms the basis of [the plaintiffs state-law claim is [the defendant's alleged anti-union conduct, firing [the p]laintiff for his pro-union history and comments. The public policy he relies on to support his claim is a purported policy against anti-union activity.\u201d Id. at 1266. As a result, \u201cthe public policy forming the basis of his retaliatory-discharge claim is exactly the same as the purposes behind the NLRA \u2014 to prevent anti-union actions by employers.\u201d Id. Therefore, the court held that \u201c[the defendant's action in this case, firing [the p]laintiff due to his supposed pro-union views, is arguably a violation of the NLRA and therefore subject to the jurisdiction of the NLRB.\u201d Id.\n{17} It is well-established that the protections of Sections 7 and 8 of the NLRA only cover employees. 29 U.S.C. \u00a7\u00a7 157-158; see 29 U.S.C. \u00a7 152(3) (1978) (defining \u201cemployee\u201d); 29 U.S.C. \u00a7 152(11) (defining \u201csupervisor\u201d); see Int\u2019l Longshoremen\u2019s Ass\u2019n, AFL-CIO v. Davis, 476 U.S. 380, 394-95,106 S.Ct. 1904, 90 L.Ed.2d 389 (1986) (holding that in order for NLRA preemption to apply, the claimant must have \u201carguably\u201d been an employee covered by the NLRA); Beasley, 416 U.S. at 661-62, 94 S.Ct. 2023 (holding that Congress specifically excluded supervisors from the NLRA\u2019s protections). Plaintiff alleges he was terminated on suspicion that he was organizing a union. Accepting for the moment that Plaintiff was an employee and not a supervisor under the NLRA, we agree with the analysis in Dominguez. The NLRA prohibits firing employees for union-organizing activity. 29 U.S.C. \u00a7\u00a7 157, 158(a)(4). Thus, assuming Plaintiffs status as an employee, his claims arguably fall within the purview of the NLRA and must first be heard by the NLRB.\n{18} Because supervisors are not protected by the NLRA, their claims are not subject to Garmon preemption. Plaintiff argues that because his complaint identifies his title as \u201cproduce manager,\u201d he should be considered a supervisor for purposes of the NLRA and his claims should not be preempted under Garmon. The term, supervisor, is specifically defined by the NLRA as someone who exercises the \u201cauthority ... to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action.\u201d 29 U.S.C. \u00a7 152(11). Plaintiffs argument falls short of this definition. Plaintiff never refers to himself as a supervisor in his complaint. The title, \u201cproduce manager,\u201d says nothing of Plaintiffs functional authority over subordinate personnel, and Plaintiff provides no such information in his complaint. When Plaintiff previously filed a complaint with the NLRB in this ease, he referred to himself specifically as \u201cWilliam Humphreys, an employee.\u201d These matters of record lead us to seriously question Plaintiffs alleged status as a supervisor under the NLRA.\n{19} Despite such disagreements over Plaintiffs authority Dominguez reminds us that \u201c[wjhere there is an arguable question as to whether an employee is a supervisor or an employee covered under the NLRA, that question must be submitted initially to the NLRB for a decision.\u201d 137 F.Supp.2d at 1267. Nevertheless, even should w\u00e9 view Plaintiff as a supervisor, his claims are still preempted under Beasley and Machinists.\nE. Preemption under Beasley and Machinists\n{20} In Beasley, the United States Supreme Court granted certiorari to consider whether state courts could hear claims brought by supervisors terminated for union activity. 416 U.S. at 654-55, 94 S.Ct. 2023. It was undisputed that the plaintiffs qualified as supervisors under the NLRA, id. at 656, 94 S.Ct. 2023, and as such, the plaintiffs argued the state had the authority to hear their claims. Id. at 658, 94 S.Ct. 2023. The Court disagreed. It analyzed the NLRA and its amendments in detail and concluded that Congress specifically removed supervisors from the NLRA and intentionally exposed them to termination for union activity. Id. at 661-62, 94 S.Ct. 2023. In doing so, the Court held that, \u201cCongress\u2019 dominant purpose ... was to redress a perceived imbalance in labor-management relationships that was found to arise from putting supervisors in the position of serving two masters with opposed interests.\u201d Id. Thus, the states have no jurisdiction to consider claims of this type made by supervisors because to do so would \u201cflout the national policy against compulsion upon employers ... to treat supervisors as employees.\u201d Id. at 662, 94 S.Ct. 2023.\n{21} The Court decided Machinists two years later. 427 U.S. at 132, 96 S.Ct. 2548. The Court observed that certain state involvement in labor regulation was nevertheless preempted even though it fell outside the NLRA. Id. at 140, 96 S.Ct. 2548. Such involvement is preempted when Congress has expressed an intent \u201cthat the conduct involved be unregulated because [it should] be controlled by the free play of economic forces.\u201d Id. (internal quotation marks and citation omitted). In order to balance the parry and thrust of union-management negotiations, Congress has armed each with certain \u201cweapons\u201d to aid in the collective bargaining process. Id. at 147-48, 96 S.Ct. 2548. Labor is no less powerful than management in this regard. Id. Thus, where Congress specifically leaves certain practices unregulated, states \u201cmay not prohibit [their use] or add to an employer\u2019s federal legal obligations in collective bargaining.\u201d Id. at 147, 96 S.Ct. 2548 (internal quotation marks omitted).\n{22} So, if Plaintiff was a supervisor, the holdings of Beasley and Machinists control. See Bowlen v. ATR Coil Co., Inc., 553 N.E.2d 1262, 1264 (Ind.Ct.App.1990) (holding that supervisor\u2019s state law claims were preempted); 190 A.L.R. Fed. 323 \u00a7 26 (2003) (discussing preemption of supervisor termination claims). Beasley instructs us that Congress has given employers the authority to terminate supervisors for them union activities. 416 U.S. at 661-62, 94 S.Ct. 2023. Under Machinists, if Congress has expressed an intent to arm a party with such a weapon, state courts may not confiscate it. 427 U.S. at 147-51, 96 S.Ct. 2548. Thus, assuming Plaintiff was a supervisor, his state law claims are preempted by the authority of the NLRB.\nF. Severability\n{23} Finally, we reject Plaintiffs argument that his claims are severable for purposes of federal preemption on these facts. We agree with the well-established general principle that some counts in a complaint may be preempted while others may continue in state court. See Garley, 236 F.3d at 1214-15 (affirming dismissal of claims for breach of contract, breach of duty of good faith and fair dealing, and defamation because of preemption, but reversing dismissal of claims for alleged civil conspiracy and retaliation, and intentional infliction of emotional distress). But in this ease, each count of Plaintiffs complaint grows from one universal core allegation: Plaintiff was terminated by Defendants on suspicion that he sought to organize a union among the employees at their grocery store. This allegation remains constant despite the fact that five individual legal arguments, each relying on unique authorities, grow out from it. For example, in count one, Plaintiff argues breach of contract. In count four, he argues wrongful termination. If we ask, why are Defendants guilty of these allegations, the only reasonable conclusion we can reach is \u2014 Defendants are guilty because they terminated Plaintiff on their belief that he engaged in organizing a union. Such logic applies equally to each count in Plaintiffs complaint, and each count implicates the broader concerns of national labor policy. We therefore hold that all are uniformly precluded.\nCONCLUSION\n{24} We affirm the district court. While it is true that Section 301 of the LMRA poses no obstacle to Plaintiffs claims, each still fails under either Garmon, Beasley or Machinists, regardless of whether we consider Plaintiff an employee or a supervisor under the NLRA.\n{25} IT IS SO ORDERED.\nWE CONCUR: MICHAEL E. VIGIL, Judge and TIMOTHY L. GARCIA, Judge (specially concurring).\n. Plaintiff withdrew this NLRB complaint before it received consideration.\n. We note that this language is repeated almost verbatim, in paragraph 24 of Plaintiffs complaint, asserting that Defendants\u2019 violating these principles is the basis for Plaintiff's wrongful termination claim.", "type": "majority", "author": "KENNEDY, Judge." }, { "text": "GARCIA, Judge\n(specially concurring).\n{26} I specially concur to emphasize that Plaintiffs claims were dismissed under Rule 1-012(B) without prejudice. Since the district court\u2019s order does not indicate whether Plaintiffs claims were dismissed with or without prejudice, we presume that Plaintiffs claims were dismissed without prejudice. Cruz v. FTS Constr. Inc., 2006-NMCA-109, \u00b6 27, 140 N.M. 284, 142 P.3d 365 (reasoning that where a district court\u2019s order does not specify whether a dismissal is with or without prejudice, the dismissal is considered to be without prejudice).\n{27} As a result of the district court\u2019s dismissal of Plaintiffs claims without prejudice, Plaintiff still has a right to refile his state law claims if he can overcome issues regarding whether the NLRA preempts his state law claims and any statute of limitations issues. I agree with the majority that since the disputed activity is arguably subject to Section 7 or 8 of the NLRA, and there is an arguable question regarding whether Plaintiff is an employee covered under the NLRA, the proper forum to initially address those issues is before the NLRB. Majority Opinion, \u00b6\u00b6 16-19. As a result, the district court\u2019s dismissal of Plaintiffs claims without prejudice was appropriate. See Dominguez, 137 F.Supp.2d at 1267 (concluding that where the plaintiff was arguably covered by provisions of the NLRA and his state law claim arguably fell within the core purposes of the NLRA, dismissal was appropriate because the state law claim was preempted by the NLRA).\n{28} As the majority recognizes, if a disputed activity \u201cis arguably subject to Section 7 or 8 of the NLRA, the States as well as the federal courts must defer to the exclusive [jurisdiction] of the NLRB if the danger of state interference with national policy is to be averted.\u201d Majority Opinion, \u00b6 14; Weise, 2008-NMCA-121, \u00b6 8,144 N.M. 867, 192 P.3d 1244. The United States Supreme Court has clarified that the proper procedure for a state court to determine whether Section 7 or 8 of the NLRA preempts a state law claim is as follows: \u201c[A] court first must decide whether there is an arguable case for [preemption]; if there is, it must defer to the [NLRB], and only if the [NLRB] decides that the conduct is not protected or prohibited may the court entertain the litigation.\u201d Int\u2019l Longshoremen\u2019s Ass\u2019n v. Davis, 476 U.S. 380, 397, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986). Until the NLRB makes its initial determination of whether Plaintiffs activity is actually governed by Section 7 or 8 of the NLRA, it is uncertain whether the NRLA preempts any future state law claims by Plaintiff.\n{29} As a result, I agree that since there is an arguable case for preemption, the NLRB has exclusive initial jurisdiction to determine whether the disputed activity is subject to the NLRA. However, as Davis clarifies, a state court\u2019s initial determination that the NLRA arguably preempts state law does not necessarily preclude all future state law claims. Instead, if the NLRB determines that the conduct is not protected or prohibited under the NLRA, then a state court may entertain the litigation under the following circumstances: \u201c(1) if the conduct in question is only a peripheral concern of the NLRA, or (2) if the state law claims touch interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, [a court] could not infer that Congress had deprived the States of the power to act.\u201d Weise, 2008-NMCA-121, \u00b6 9, 144 N.M. 867, 192 P.3d 1244 (internal quotation marks and citations omitted).\n{30} I concur with the ultimate result in this ease and the dismissal of Plaintiffs claims without prejudice.", "type": "concurrence", "author": "GARCIA, Judge" } ], "attorneys": [ "Steven K. Sanders & Associates, LLC, Steven K. Sanders, Albuquerque, NM, for Appellant.", "Littler Mendelson, P.C., R. Shawn Oiler, Phoenix, AZ, for Appellees." ], "corrections": "", "head_matter": "2011-NMCA-035\n261 P.3d 592\nWilliam R. HUMPHRIES, Plaintiff-Appellant, v. PAY AND SAVE, INC., a/k/a Lowe\u2019s Grocery # 55 and Tim Cotton, Defendants-Appellees.\nNo. 29,197.\nCourt of Appeals of New Mexico.\nMarch 11, 2011.\nSteven K. Sanders & Associates, LLC, Steven K. Sanders, Albuquerque, NM, for Appellant.\nLittler Mendelson, P.C., R. Shawn Oiler, Phoenix, AZ, for Appellees." }, "file_name": "0444-01", "first_page_order": 480, "last_page_order": 487 }