

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-1295

                      VINCENT R. TAMBURELLO,

                      Plaintiff - Appellant,

                                v.

            COMM-TRACT CORPORATION, JOHN F. POLMONARI,
                EDWARD MENARD, AND STEVEN DICKIE,

                     Defendants - Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. Rya W. Zobel, U.S. District Judge]                                                              

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                      Lynch, Circuit Judge,                                                    

                  and Casellas,* District Judge.                                                         

                                           

     Matthew Cobb, with whom  Law Office of Matthew Cobb,  was on                                                                  
brief for appellant.
     Timothy P.  Van  Dyck, with  whom  Joshua L.  Ditelberg  and                                                                      
Edwards &amp; Angell, were on brief for appellees.                          

                                           

                         October 2, 1995
                                           

                                                  

*  Of the District of Puerto Rico, sitting by designation.

          TORRUELLA,   Chief   Judge.       Vincent    Tamburello                    TORRUELLA,   Chief   Judge.                                              

(Tamburello) appeals  the dismissal of his  complaint against his

employer,  Comm-Tract  Corporation   (Comm-Tract),  and   several

individuals who  were his supervisors at  Comm-Tract.  Tamburello

alleges that his supervisors engaged in a course of harassment in

retaliation for  his union  activities as  a  union steward,  and

seeks damages under, inter  alia, the Racketeering Influenced and                                          

Corrupt Organizations Act (RICO), 18 U.S.C.   1962(c) (1988), and

the  Massachusetts Civil Rights Act (MCRA), Mass. Gen. L. ch. 12,

   11I (1988).  The district court found that Tamburello's claims

are preempted by the National Labor Relations Act, as amended, 29

U.S.C.     151-161  (1988)  (NLRA), and  therefore dismissed  his

complaint  for failure to state a claim  upon which relief may be

granted, Fed. R. Civ. P. 12(b)(6).  We affirm.

                            BACKGROUND                                      BACKGROUND

          We review the dismissal de novo, considering only those                                                   

facts  alleged  in  the  complaint, and  drawing  all  reasonable

inferences therefrom.  Lesser  v. Little, 857 F.2d 866,  867 (1st                                                  

Cir. 1988).   We will  affirm the  dismissal "only if  it appears

beyond  doubt that [Tamburello] can  prove no set  of facts which

would entitle him  to relief."  Id. (citing Conley v. Gibson, 355                                                                      

U.S. 41, 45-46 (1957)).

          In  July 1991,  Tamburello  became a  union steward  at

Comm-Tract.    He alleges  that  soon  afterwards the  individual

defendants   -- the  president, general  manager, and  manager of

Comm-Tract -- began harassing, threatening and intimidating  him.

                               -2-

Specifically,  Tamburello  alleges  that   they  pulled  him  off

favorable jobs, replacing him with less skilled workers; gave him

menial  job assignments;  withheld his  personnel file  from him;

took  him off  jobs to  deny him  overtime pay;  made him  take a

forced  vacation  or  face  termination; took  away  his  company

vehicle;  and made threatening anti-union statements.  Tamburello

alleges  that these  actions "were  solely to  harass, embarrass,

coerce,  and intimidate [him] into giving up his Steward position

with  the Union."  As  a result of  this intimidation, Tamburello

resigned  his   position  with   Comm-Tract  in  May   1993,  and

subsequently instituted this action.

                            DISCUSSION                                      DISCUSSION

          Count  I  of Tamburello's  complaint  alleges that  the

individual  defendants conducted  the affairs  of  an enterprise,

Comm-Tract,  through   a  pattern  of  Hobbs   Act  extortion  of

Tamburello's property rights, in  violation of RICO, 18  U.S.C.  

1962(c).    Count  II  alleges  that  the  individual  defendants

conspired to violate RICO by knowingly joining the enterprise and

by  committing,  or  agreeing to  commit  at  least  two acts  of

racketeering.   Count  IV  alleges that  all defendants  violated

Tamburello's  rights under the MCRA.1  We address the RICO claims

first.

I.  The RICO Claims          I.  The RICO Claims                             

                                                  

1  Tamburello does  not appeal the district court's  dismissal of
Counts III and V.

                               -3-

          Tamburello alleges that the  actions of his supervisors

at Comm-Tract constituted  a pattern of extortion  to deprive him

of his rights to speak out on union matters, his rights under the

collective-bargaining  agreement, and his right  to his job.  The

district court  held that Tamburello's RICO  claims are preempted

by   the  NLRA,   which  "pre-empts   state  and   federal  court

jurisdiction  to remedy  conduct  that is  arguably protected  or

prohibited by the Act."  Amalgamated Ass'n of Street, Elec. Ry. &amp;                                                                           

Motor  Coach Employees  v. Lockridge,  403 U.S.  274, 276  (1971)                                              

(citing San Diego Bldg.  Trades Council v. Garmon, 359  U.S. 236,                                                           

244 (1959)).

          The NLRA "is a comprehensive code passed by Congress to

regulate labor relations  in activities affecting  interstate and

foreign  commerce."  Nash v. Florida Indus. Comm'n, 389 U.S. 235,                                                            

238 (1967).  The  NLRA reflects congressional intent to  create a

uniform,  nationwide   body  of   labor  law  interpreted   by  a

centralized expert  agency -- the National  Labor Relations Board

(NLRB).    Accordingly, the  NLRA  vests  the NLRB  with  primary

jurisdiction over unfair labor  practices.  See 29 U.S.C.    158.                                                         

Applying these principles, the Garmon  Court held that "[w]hen an                                               

activity  is arguably subject  to   7  or   8 of  the [NLRA], the

States as well as the federal courts  must defer to the exclusive

competence of the National Labor Relations Board if the danger of

state  interference  with  national  policy is  to  be  averted."

Garmon, 359 U.S. at 245.  The Court has interpreted  this to mean                

that, "as a general  rule, neither state nor federal  courts have                                                                           

                               -4-

jurisdiction over  suits directly involving 'activity  [which] is                      

arguably subject to    7 or   8 of the Act.'"  Vaca v. Sipes, 386                                                                      

U.S. 171, (1967) (emphasis added; and quoting Garmon, 359 U.S. at                                                              

245).  See also  Morgan v. Massachusetts General Hosp.,  901 F.2d                                                                

186, 194  (1st Cir.  1990) ("as  a general  rule, the  [NLRB] has

'exclusive  jurisdiction  to find,  prevent,  and rectify  unfair

labor  practices'")   (quoting  New   Mexico  Dist.  Council   of                                                                           

Carpenters, AFL-CIO v. Mayhew Co., 664 F.2d 215 (10th Cir. 1981);                                           

and  collecting   cases)).    A  primary   justification  of  the

preemption doctrine is  "the need to  avoid conflicting rules  of

substantive law in the labor  relations area and the desirability

of leaving  the development of  such rules to  the administrative

agency created by Congress  for that purpose . . .  ."  Vaca, 386                                                                      

U.S. at 180-81.2

          The alleged  wrongful conduct in this  case is arguably

prohibited by  the NLRA.   Section 8(a)(3)  of the NLRA  makes it
                                                  

2  Although the Garmon doctrine, which is rooted in the Supremacy                                
Clause of  the United States  Constitution, U.S. Const.  art. VI,
cl. 2, was originally concerned only with  federal supremacy over
conflicting  state  laws,  it  has  been  extended  to  cover the                            
relationship between  the NLRA and  other federal statutes.   See                                                                           
Connell Co. v. Plumbers &amp; Steamfitters, 421 U.S. 616, 626 (1974);                                                
Morgan,  901 F.2d at 194;  New Bedford Fishermen's  Welf. Fund v.                                                                        
Baltic Ent.,  813 F.2d  503, 504-05  (1st Cir.  1987).   But  see                                                                           
United  States  v. Boffa,  688 F.2d  919,  931-33 (3d  Cir. 1982)                                  
(concluding  that Garmon does not  apply to conflicts between the                                  
NLRA and federal  statutes), cert. denied, 460  U.S. 1022 (1983).                                                   
Because the  NLRA's relationship with a  state statute implicates
the Supremacy Clause, and its relationship with a federal statute
does  not, some  courts  hold that  the  analysis in  the  former
situation should  be stricter than in  the latter.  See  Britt v.                                                                        
Grocers Supply Co., Inc., 978 F.2d 1441, 1446-47 (5th Cir. 1992);                                  
Boffa, 688  F.2d at 931-33.  The facts of this case are such that               
we need  not at this time  decide whether, or to  what extent, we
agree with this proposition.

                               -5-

unlawful  for an employer "by discrimination in regard to hire or

tenure of employment to encourage or discourage membership in any

labor organization."    29  U.S.C.    158(a)(3).    The  ultimate

question   presented  by  Tamburello's   claims  is  whether  his

supervisors  at Comm-Tract intimidated,  coerced, threatened, and

harassed him into quitting  his job in retaliation for  his union

activities as a union steward.   It is beyond dispute  that these

allegations, if found to be true, would constitute a violation of

the NLRA.   See Sure-Tan, Inc. v. NLRB, 467  U.S. 883, 894 (1983)                                                

(an  employer  violates   8(a)  (3)  "when, for  the  purposes of

discouraging  union  activity,  .  . .  it  purposefully  creates

working conditions so intolerable that the employee has no option

but  to  resign").3    Unless an  exception  applies,  therefore,

Tamburello's  RICO  claims  are  subject to  the  NLRB's  primary

jurisdiction.

          There are three generally  recognized exceptions to the

NLRB's primary  jurisdiction.   The first is  where Congress  has

expressly  carved   out  an  exception  to   the  NLRB's  primary

jurisdiction.   Vaca, 386 U.S. at 179-80  (citing cases); Brennan                                                                           

v. Chestnut, 973 F.2d 644, 646 (8th Cir. 1992).  Congress has not                     

                                                  

3  Tamburello's claims are also arguably  subject to   8(a)(1) of
the NLRA, which makes it an unfair labor practice for an employer
to "interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in [  7 of  the NLRA]."  29 U.S.C.   158
(a)(1).   Section 7 provides,  in pertinent part,  that employees
shall  have the right to "self-organization, to form, to 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 . . . ."  29 U.S.C.   157.

                               -6-

made an  exception to the NLRB's primary  jurisdiction for claims

alleging    extortion.      Indeed,    the   only   labor-related

"racketeering"  activity   expressly  listed  as   predicates  to

liability  under  RICO  are  actions  concerning restrictions  of

payments and loans to labor  organizations, or those relating  to

embezzlement  from labor funds.   See 18 U.S.C.    1961(1)(C); 29                                               

U.S.C.     186, 501(c).  The specific exceptions carved out in   

186 and 501(c) support the conclusion that Congress intended that

"violations  of labor laws other than   186 [or   501(c)] alleged

as  predicate  acts are  preempted."   Brennan,  973 F.2d  at 647                                                        

(citing Butchers' Union, Local No. 498 v.  SDC Inv., Inc., 631 F.                                                                   

Supp.  1001 (E.D.Cal. 1986)).  This  exception therefore does not

apply.

          The   second  exception  applies   when  the  regulated

activity touches "interests so deeply rooted in local feeling and

responsibility that,  in the absence of  compelling congressional

direction," courts  "could not  infer that Congress  had deprived

the  States of  the  power to  act."   Sears,  Roebuck  &amp; Co.  v.                                                                       

Carpenters,  436 U.S. 180, 195 (1977) (quoting Garmon 359 U.S. at                                                               

244).  This exception is  inapplicable to plaintiff's RICO claims

because they  involve the relationship between  two federal laws,

as opposed to a state and a federal law.

          The  third exception  holds that  the NLRB's  exclusive

jurisdiction does not apply if the regulated activity is merely a

peripheral  or collateral concern of  the labor laws.   Vaca, 386                                                                      

U.S.  at 179-80; Brennan, 973 F.2d at 646.  Under this exception,                                  

                               -7-

federal  courts  may  decide   labor  questions  that  emerge  as

collateral issues  in suits brought under  statutes providing for

independent federal remedies.   Connell Construction, 421 U.S. at                                                              

626;  Britt v. Grocers Supply Co., Inc., 978 F.2d 1441, 1446 (5th                                                 

Cir. 1992).

          Plaintiff's  allegations arguably  establish violations

of  both RICO  and the  NLRA --  extortion on  the one  hand, and

unfair labor practices on  the other.  We must  determine whether

the issues raised by Tamburello's potential unfair labor practice

claims are merely  collateral to  the issues raised  by his  RICO

extortion claims.  In  making this determination, several federal

courts  take the position that  courts must defer  to the primary

jurisdiction  of the NLRB if  the underlying conduct  of the RICO

claim is wrongful only by  virtue of, or reference to, the  labor

laws.   See Brennan, 973  F.2d at 646;  Talbot, 961 F.2d  at 662;                                                        

Mann v. Air  Line Pilots Assoc., 848 F. Supp.  990, 993 (S.D.Fla.                                         

1994);  McDonough  v.  Gencorp,  Inc.,  750  F.  Supp.  368,  370                                               

(S.D.Ill.  1990).   One  federal court  has  framed the  issue as

follows:

            RICO should  be read  as  limited by  the
            exclusive jurisdiction of  the NLRA  only
            when  the   Court  would  be   forced  to
            determine  whether  some  portion of  the
            defendant's  conduct  violated labor  law
            before  a  RICO  predicate act  would  be
            established.   So  long as  the predicate
            act  exists  independent  of  any  unfair
            labor  practice  resolutions, the  NLRB's
            exclusive  jurisdiction  is not  violated
            since the  Court  will not  be forced  to
            interpret   labor   law   except   as   a
            collateral  matter.    However,   if  the
            existence of the  predicate acts  depends

                               -8-

            wholly  upon  a   determination  that   a
            violation of federal labor  law occurred,
            jurisdiction is preempted.

MHC  v. Intern. Union,  United Mine  Wkrs. of  Am., 685  F. Supp.                                                            

1370,  1376-77 (E.D.Ky. 1988).   Similarly, we have  held, in the

context of Title VII of the Civil Rights Act of 1964, 42 U.S.C.  

2000e  et seq., that the NLRA  is the exclusive remedy for claims

"which  hinge  on  an  unfair labor  practice  having  occurred."

Morgan, 901 F.2d at 194.                

          Like  Tamburello,  the  plaintiff  in  Brennan  alleged                                                                  

extortion  as  a  predicate  RICO  act.    In  holding  that  the

plaintiff's RICO extortion claim  was "preempted" (see supra n.2)                                                                      

by the NLRA, the Eighth Circuit court noted that 18 U.S.C.   1951

(1988)  is a  generic  law prohibiting  extortion,4 and  reasoned

that the  court was therefore forced to look to the labor laws to

define  the alleged  illegal  conduct.   Because the  defendant's

conduct  was illegal, if at all, only  by virtue of the NLRA, the

                                                  

4  18 U.S.C.   1951 provides:

               (a)  Whoever  in  any  way  or  degree
            obstructs, delays, or affects commerce or
            the movement of any article  or commodity
            in commerce, by  robbery or extortion  or
            attempts  or  conspires   so  to  do,  or
            commits or threatens physical violence to
            any  person or property in furtherance of
            a  plan  or  purpose  to  do  anything in
            violation of this section shall  be fined
            not more than  $10,000 or imprisoned  not
            more than twenty years, or both.

   RICO defines  "extortion" as  "the obtaining of  property from
another, with his consent,  induced by wrongful use of  actual or
threatened force, violence,  or fear, or under color  of official
right."  18 U.S.C.   1951(b)(2).

                               -9-

court  concluded  that the  NLRB  had  exclusive jurisdiction  to

resolve what was, at its essence, an unfair labor practice claim.

See Brennan, 973 F.2d at 647.                     

          For reasons  similar to those expressed  in Brennan, we                                                                       

conclude  that the  unfair  labor practice  issues implicated  by

Tamburello's  complaint are  not  merely collateral  to his  RICO

claims.5  Tamburello alleges  that his supervisors placed  him on

the  less desirable  work  assignments, reduced  his chances  for

overtime  pay,   made  him  take   a  forced  vacation   or  face

termination, took away his  company vehicle, and made threatening

anti-union activities, all to coerce him into giving up his union

steward position,  and, eventually,  to resign his  position with

Comm-Tract.  The problem  is that none of this alleged conduct is

illegal without  reference  to the  NLRA.   It is  the NLRA  that

prohibits employers from  creating intolerable working conditions

to discourage union activities, see 29  U.S.C.   158(a)(3); Sure-                                                                           

Tan, 467  U.S. 894, and it is the NLRA that prohibits an employer             

from interfering with  an employee's  right to join  a union  and

engage  in concerted  activities for  mutual aid  and protection.

See 29 U.S.C.    158(a)(1), 157.  Indeed, one would  presume that             

Congress passed  the NLRA, at  least in  part, precisely  because

                                                  

5    We  note also  that,  in a  general  sense,  claims alleging
employer retaliation  for  protected  union  activities  are  not
merely a peripheral concern of the NLRA.  As indicated above, the
conduct alleged in this case would, if true, constitute an unfair
labor  practice under the  NLRA.   The authority  of the  NLRB to
remedy unfair labor practices is central to its purpose.  NLRB v.                                                                        
State of Illinois Dept. of Employment Security, 988 F.2d 735, 739                                                        
(7th Cir. 1993).

                               -10-

conduct  such  as  that  complained  of  by  Tamburello  was  not

theretofore prohibited.  We thus  agree with the district court's

conclusion that  "the alleged conduct that  led to [Tamburello's]

termination  of employment is illegal  only by reference to union

activities."

          In order to determine whether plaintiff has established

a RICO predicate act, a reviewing court would be forced to decide

whether  some portion  of  the defendant's  conduct violated  the

federal  labor laws.   Because  plaintiff's claim  hinges upon  a

determination of  whether an unfair labor  practice has occurred,

we  conclude  that his  RICO claims  are  subject to  the primary

jurisdiction of the NLRB.6

          As  a  final  matter,   we  will  briefly  address  two

additional  arguments  proffered  by   the  plaintiff.     First,

Tamburello  contends   that  the  NLRA  does  not  apply  to  his

allegations at all because  his RICO claims are  asserted against

the  individual defendants,  and  not the  "employer" within  the

meaning  of the NLRA.  The NLRA expressly provides, however, that

"[t]he  term 'employer' includes any person acting as an agent of

an employer,  directly or indirectly."  29  U.S.C.   152(2).  The

                                                  

6   We note  that the question  of whether a  labor law  issue is
collateral to issues raised  by a claim under another  statute is
an  intensely fact  driven inquiry.    The focus  must be  on the
particular  allegations of the plaintiff's complaint to determine
whether  any or  all  of  the  claims  may  be  resolved  without
determination of  questions of federal  labor law.   In addition,
"[i]t is the conduct being regulated,  not the formal description
of  governing  legal  standards,  that  is  the  proper focus  of
concern."   Motor Coach Employees v. Lockridge, 403 U.S. 274, 292                                                        
(1971).

                               -11-

district court's  finding that  the individual defendants  -- the

president, general manager, and manager of Comm-Tract -- acted as

the  agents   of  the  company   is  supported  by   the  record,

particularly   since  Tamburello's  complaint  alleged  that  the

individual defendants controlled Comm-Tract.  See American Press,                                                                           

Inc. v. NLRB, 833 F.3d  621, 625 (6th Cir. 1987) (the test  to be                      

applied is "whether, under all the   circumstances, the employees

could reasonably believe that  an employee was reflecting company

policy,  and  speaking  and   acting  for  management")  (quoting

Aircraft  Plating Co.,  213 N.L.R.B. 664  (1974)).   We therefore                               

reject  Tamburello's argument that the NLRA does not apply to his

RICO claims.

          Second, Tamburello  strains to fit his  case within the

exception to Garmon granted  suits alleging a breach of  the duty                             

of  fair representation under   9(a) of the NLRA.  See Breininger                                                                           

v. Sheet Metal  Workers Int'l Assoc. Local Union No.  6, 493 U.S.                                                                 

67, 74 (1989)  (reiterating rule that Garmon preemption  does not                                                      

apply   to  suits  alleging  a   breach  of  the   duty  of  fair

representation) (citing  Vaca, 386 U.S. at 181).   Tamburello did                                       

not  sue  his  union  directly,   but  rather  brought  his  fair

representation  allegations as part of a  "hybrid" action under  

301,  which provides  federal jurisdiction  for employees  to sue

their employer  for breach of a  collective bargaining agreement,

and  their union for breach  of its duty  of fair representation.

See 29  U.S.C.   185(a); Vaca,  386 U.S. at 186.   The Breininger                                                                           

Court  implied that Garmon would  not apply to  hybrid   301/fair                                    

                               -12-

representation claims because of the important interest of having

the  same  entity  adjudicate  a joint  claim  against  both  the

employer  and  the union.   See  Breininger,  493 U.S.  at 80-84.                                                     

Tamburello argues that the reasoning of Breininger applies to him                                                            

because  he brought both a  RICO claim and  a fair representation

claim.

          Breininger   concerned   hybrid  actions   against  the                              

employer  for breach  of a  collective bargaining  agreement, and

against  the union for breach of the duty of fair representation.

Tamburello's   argument   fails   because   his  duty   of   fair

representation claim  (Count III)  was dismissed by  the district

court,  and  is not  prosecuted on  appeal,  and his  RICO claims

implicate none of the concerns underlying Breininger and Vaca for                                                                       

exempting fair  representation claims  from the Garmon  doctrine.                                                                

Vaca and Breininger exempted  fair representation claims from the                             

reach of Garmon for two related  reasons.  First, the Court noted                         

that  the duty of fair representation has judicially evolved, and

that it predated the prohibitions against unfair labor practices.

Breininger, 493 U.S.  at 74-79  (citing Vaca, 386  U.S. at  181).                                                      

Second,  noting  that fair  representation  claims often  involve

matters outside  the NLRB's  unfair labor practice  jurisdiction,

the Court expressed its  doubt that the NLRB brought  any greater

degree  of expertise to  such claims than  courts.  Id.   Because                                                                

Tamburello has no viable duty of fair representation claim before

the  court, and  his RICO  claims do  not implicate  the concerns

                               -13-

underlying Breininger,  his claims remain subject  to the primary                               

jurisdiction of the NLRB.

II.  The State Law Claims          II.  The State Law Claims                                   

          In Count IV, Tamburello alleges that the conduct of his

supervisors violated his rights under the MCRA, Mass. Gen. L. ch.

12   11, which provides a remedy for the interference "by threat,

intimidation,  or  coercion"  with an  individual's  "exercise or

enjoyment  of rights secured by  the constitution or  laws of the

United States, or of  rights secured by the constitution  or laws

of  the commonwealth."   Mass. Gen.  L. ch.  12,    11I; Bally v.                                                                        

Northeastern University, 403 Mass. 713, 717 (1989).  As explained                                 

above,  the  alleged  conduct  of  Tamburello's  supervisors   is

arguably subject to    8(a)(3)  of the NLRA,  which prohibits  an

employer from discriminating against an employee on  the basis of

union status,  and also to    8(a)(1).   As with the  RICO claim,

therefore, the question is whether any of the three exceptions to

Garmon preemption  apply.   The  first  and third  exceptions  do                

not;7 we address the second exception below.

          Garmon preemption  does not apply  when the  underlying                          

regulated activity  touches "interests so deeply  rooted in local

feeling  and responsibility  that, in  the absence  of compelling

                                                  

7   The first exception -- whether Congress has explicitly carved
out  an  exception to  the  NLRB's exclusive  jurisdiction  -- is
inapplicable to Tamburello's state  law claims.  With respect  to
the third  exception, we  concluded above  that the  unfair labor
practice issues  implicated  by Tamburello's  complaint  are  not
merely collateral to his RICO claims.  For the same reasons, they
are  not merely  collateral  to  his  MCRA  claims.    The  third
exception therefore does not apply.

                               -14-

congressional direction,"  courts "could not infer  that Congress

had deprived the States  of the power to  act."  Sears,  Roebuck,                                                                          

436  U.S. at  195 (quoting  Garmon 359  U.S. at  244).   In cases                                            

where, as here,  the underlying conduct is arguably prohibited by                                                                        

the  NLRA,   the  Court  has  identified   two  prerequisites  to

application of the "local interests" exception.  First, the state

must have a significant  interest in protecting the  citizen from

the challenged conduct.   Second, the controversy which  could be

presented  to the state court  must be different  from that which

could have been  presented to the NLRB.  Sears, Roebuck, 436 U.S.                                                                 

at 196-97.  As the Court explained:

               The  critical  inquiry, therefore,  is
            not whether the State  is enforcing a law
            relating specifically  to labor relations
            or one of general application but whether
            the  controversy  presented to  the state
            court is identical to  . . . or different
            from .  . .  that which could  have been,
            but  was  not,  presented  to  the  Labor
            Board.   For  it  is only  in the  former
            situation that a  state court's  exercise
            of  jurisdiction  necessarily involves  a
            risk  of  interference  with  the  unfair
            labor practice jurisdiction of  the Board
            which the arguably  prohibited branch  of
            the  Garmon  doctrine  was   designed  to                                 
            avoid.

Id. at 197.            

          We assume,  arguendo, that the state  has a significant                                        

interest in  protecting an  employee from  the harassment  of his

supervisors in retaliation  for his union  activities.  We  agree

with the district court, however, that "Plaintiff's [MCRA] claims

raise  the same  question as would  be asked  in an  unfair labor

practice  proceeding,  namely, whether  [his  supervisors] placed

                               -15-

plaintiff on less desirable work assignments, reduced his chances

for overtime pay, and  harassed him in retaliation for  his union

activities."  

Because the controversy which would be presented to a state court

is identical to that which would  be presented to the NLRB, there

is a significant risk of state interference with the unfair labor

practice  of  the  NLRB.    Under   Garmon  and  Sears,  Roebuck,                                                                          

Tamburello's MCRA claims are therefore preempted by the NLRA.

                            CONCLUSION                                      CONCLUSION

          For the foregoing reasons, the judgment of the district

court is affirmed.                   affirmed                           

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