
USCA1 Opinion

	




                            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 & 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. &                                   ________________________________________          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 & 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  & 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                   ________                                         -16-
