                    NUMBER 13-12-00181-CV

                    COURT OF APPEALS

             THIRTEENTH DISTRICT OF TEXAS

               CORPUS CHRISTI - EDINBURG

RAMIRO CASTILLO, ROGELIO GARZA JR.,
STEPHANIE V. GONZALEZ, BRENDA
SAENZ, LYNDA VALDEZ, CLEOFE
VASQUEZ, AND JUAN M. VELA,                              Appellants,

                                v.

BROWNSVILLE-VALLEY REGIONAL
MEDICAL CENTER, INC.,                                   Appellee.


              On appeal from the 357th District Court
                   of Cameron County, Texas.


                            OPINION
   Before Chief Justice Valdez and Justices Rodriguez and Garza
                   Opinion by Justice Rodriguez
      Appellants Ramiro Castillo, Rogelio Garza Jr., Stephanie V. Gonzalez, Brenda

Saenz, Lynda Valdez, Cleofe Vasquez, and Juan M. Vela challenge the trial court's

granting of appellee Brownsville-Valley Regional Medical Center's (the Hospital) plea to

the jurisdiction on appellants' claims under the Texas Occupations Code, Texas Health

and Safety Code, and Texas Administrative Code. By one issue, appellants argue that

the trial court erred in granting the Hospital's plea because the National Labor Relations

Act (NLRA or the Act)—under which both appellants and the Hospital had claims pending

before the National Labor Relations Board (NLRB or the Board) in connection with the

same events giving rise to this case—does not pre-empt appellants' state law claims.

We affirm.

                                     I. Background

      In their petition, appellants alleged the following facts:

            26.     On April 3, 2011, Plaintiff Gonzalez was serving as Charge
      Nurse [in the Hospital's Intensive Care Unit (ICU)]. She was called away
      from ICU on a rapid response code to assist with a patient in a
      medical-surgical unit. After providing the necessary assistance to the
      other unit, Plaintiff Gonzalez returned to ICU to attend to her duties as
      Charge Nurse and for her own patients.

            27.    Due to Plaintiff Gonzalez being away from ICU for the rapid
      response code, one of her ICU patients received scheduled medication
      approximately one hour late, through no fault of Plaintiff Gonzalez['s].

             28.    A nurse in the other unit asked Plaintiff Gonzalez to remain
      away from ICU longer in order to accompany the patient to a CT scan. By
      that point in time the rapid-response patient had stabilized and Plaintiff
      Gonzalez was not urgently needed to accompany the patient to the CT
      scan. Plaintiff Gonzalez, having already been away from ICU for a
      dangerous period of time, thus declined to accompany the patient to the CT
      scan . . . .

             ....

                                             2
             30.    . . . [The Hospital] issued Plaintiff Gonzalez a disciplinary
       warning for declining the request of the nurse in the other department to
       accompany the patient to a CT scan and instead returning to ICU . . . .

               31.   By imposing the above described disciplinary action on
       Plaintiff Gonzalez, [the Hospital] effectuated a drastic change in hospital
       policy. Never before had [the Hospital] imposed disciplinary action against
       an ICU nurse over the nurse's exercise of reasonable judgment in dealing
       with impossibly contradictory responsibilities arising from a rapid response
       code. This change in policy meant than an ICU nurse serving as Charge
       Nurse would not have the right to use the nurse's own judgment as to when
       it was appropriate to return to the nurse's critical duties in ICU from a rapid
       response situation. This change in policy meant, therefore, that an ICU
       nurse in such a situation would be forced to make an unreasonable choice
       between unethically leaving her critical ICU duties unattended and thus
       jeopardizing her nursing license, or declining to remain away from ICU and
       thus immediately jeopardizing her employment.

       Appellants alleged that the foregoing was precipitated by the Hospital's failure to

"implement and enforce a written nurse staffing policy that ensures an adequate number

and skill mix of nurses are available to meet the highly acute level of patient care needed

in ICU." Appellants alleged that the Hospital's nurse staffing policy: is "inadequate for

the proper and safe care for acute care patients"; is "not based on multiple nurse and

patient considerations"; is "not in accordance with evidence-based safe nursing

standards"; "does not include a method for adjusting the staffing plan to provide flexibility

to meet patient needs"; and "does not include a contingency plan when patient care

needs unexpectedly exceed direct patient care staff resources." Appellants also alleged

that the Hospital failed "to provide for a Charge Nurse in its ICU nurse staffing plan,"

instead rotating "Charge Nurse assignments among the Registered Nurses [RNs] in the

ICU." As a result of this failure, in particular, appellants alleged that the rotating ICU

charge nurse was responsible for his or her charge nurse duties, a full load of ICU

patients, and responding to rapid response codes in other parts of the hospital.
                                             3
Appellants allege that this policy is different from the charge nurse policies in the

Hospital's other departments, where the nurse staffing policies provide for a dedicated

charge nurse who has no other responsibilities.

        In connection with these ICU nurse staffing policy failures, appellants then alleged

the following:

                33.    The realization that good faith service as Charge Nurse would
        place them in jeopardy of violating proper nursing practices and
        endangering their patients as a condition of their employment with [the
        Hospital] caused [appellants] to suffer great stress and anxiety over the
        prospect of serving as Charge Nurses, thus rendering [appellants]
        emotionally incapable of serving as Charge Nurses, and therefore requiring
        Plaintiffs to decline Charge Nurse assignments under the Standards of
        Practice required of nurses by the Rules of the Texas Board of Nursing . . . .

              34.     Accordingly, on April 29, 2011, within 60 days before [the
        Hospital] terminated their employment, each [appellant] informed [the
        Hospital] in good faith that [the Hospital]'s practice of requiring nurses in
        ICU to perform Charge Nurse duties under these circumstances exposed
        ICU patients to unnecessary health risks . . . .

              35.     At the same time, each [appellant] also informed [the
        Hospital] in good faith that he or she could not accept Charge Nurse
        assignments in the future under these circumstances . . . .[1]

Appellants alleged that the next time each of them was asked by the Hospital to perform

charge nurse duties, over a period between May 3 and May 6, 2011, he or she refused,


        1
          Paragraphs 34 and 35 of the petition appear to refer to an April 28, 2011 petition submitted to
Hospital administration by appellants and other nurse union members. The text of the petition follows:
                 Due to recent investigations conducted by Administration against the RNs in the
        Intensive Care Unit, which are without proper merit and politically motivated, the RNs of the
        Intensive Care Unit along with our union NNOC Texas choose to no longer accept the role
        of relief Charge Nurse in our respective unit. We feel these investigations are
        unwarranted and specifically target Union Members. In addition, the responsibilities and
        expectations of ICU Charge Nurses are being held to an unreasonable, deliberate double
        standard, especially in comparison to the other Charge Nurses throughout the hospital.
        Such a double standard creates a hazardous work environment for the nursing staff and
        unnecessary health risks for the patients. Therefore the undersigned RNs will no longer
        take on the title/assignment of Charge Nurse.
                                                     4
citing his or her concerns about patient safety and his or her duties under the Texas Board

of Nursing rules. After each appellant refused, the Hospital asked him or her to clock out

and suspended his or her employment. On May 13, 2011, the Hospital terminated the

employment of Vela, Garza, Vasquez, and Castillo. On May 20, 2011, the Hospital

terminated the employment of Gonzalez, Valdez, and Saenz.

        In connection with the foregoing events, the Hospital filed an unfair labor practice

charge with the NLRB, alleging that appellants had violated the NLRA by "engaging in a

partial work stoppage" without providing proper notice as required by the Act.

Appellants' union also filed an unfair labor practice charge, alleging that the Hospital

violated the NLRA by:             denying employees their Weingarten rights 2 ; disciplining

Gonzalez because she engaged in union activities; terminating appellants' employment

when they engaged in the protected, concerted activity of protesting the disciplining of

Gonzalez; and refusing to bargain with the union and, instead, unilaterally changing

charge nurse responsibilities and ICU discipline practices.                        The NLRB eventually

dismissed the charge filed by appellants' union.3 Appellants' union has appealed the

        2
          This complaint refers to NLRB v. J. Weingarten, Inc., which held that a union member's right to
have a union representative present at disciplinary meetings is a protected activity under the Act. 420 U.S.
251, 260–61 (1975); see 29 U.S.C. §§ 157, 158(a)(1) (2006) (providing that it is an unfair labor practice for
an employer to interfere with an employee's exercise of his or her right to engage in concerted activities for
the purpose of mutual aid or protection).
        3
           Although the Hospital represents in its brief that the NLRB has issued, or will shortly be issuing, a
complaint on its unfair labor practices charge, the portion of the record cited in support of this representation
does not reflect this. The cited portion of the record is the NLRB regional director's letter to appellants
informing them of its administrative dismissal of their unfair labor practice charge. The letter includes the
following:
                With regard to the terminations, the evidence established that the nurses who
        signed the petition were engaging in activity supported by the Union. Under Section 8(g)
        of the Act, if the labor organization does not provide the proper notice regarding a
        concerted refusal to work, the employees' activity is rendered unprotected by the Act. As
        such, the [Hospital] lawfully terminated the nurses when they refused to perform the charge
        nurse assignment.
                                                       5
dismissal.

        While the NLRB charges were pending, appellants filed their state lawsuit, alleging

claims under the Texas Occupations Code, the Texas Health and Safety Code, and the

Texas Administrative Code. Appellants made the following claims in their petition:

        1.      By suspending and terminating appellants' employment after they reported
        that requiring ICU charge nurses to perform both charge nurse duties and
        supervise a full-load of patients would create unnecessary health risks, the
        Hospital violated section section 301.4025 of the Texas Occupations Code and
        title 22, section 217.19(m) of the Texas Administrative Code, which create a
        whistleblower cause of action for nurses reporting a situation that he or she has
        reasonable cause to believe exposed a patient to substantial risk of harm as a
        result of failure to provide an acceptable standard of care. See Act of May 26,
        2007, 80th Leg., R.S., ch. 803, § 9, 2007 Tex. Gen. Laws 1662, 1664–65
        (amended 2011) (current version at TEX. OCC. CODE ANN. § 301.4025 (West
        2012)) 4 ; 22 TEX. ADMIN. CODE § 217.19(m) (2011) (Tex. Bd. of Nursing,
        Incident-Based Nursing Peer Review and Whistleblower Protections).

        2.      When it suspended and terminated appellants' employment after they
        reported, in good faith, that the hospital's ICU charge nurse policy exposed
        patients to a substantial risk of harm, the Hospital violated section 161.134(a) of
        the Texas Health and Safety Code and title 25, section 133.43(b) of the Texas
        Administrative Code, which create a whistleblower cause of action for hospital
        employees reporting a violation of law. See TEX. HEALTH & SAFETY CODE ANN. §
        161.134(a) (West 2010); 25 TEX. ADMIN. CODE § 133.43(b) (2011) (Tex. Dep't of
        State Health Servs., Discrimination or Retaliation Standards). Appellants alleged
        that working under the hospital's policy would have violated various reporting
        requirements imposed on nurses by the Texas Occupations Code and Texas
        Health and Safety Code and various provisions of the Texas Administrative Code
        related to standards of care for nurses and health care providers. See Act of May
        26, 2007, 80th Leg., R.S., ch. 803, § 9, 2007 Tex. Gen. Laws 1662, 1664–65; TEX.
        HEALTH & SAFETY CODE ANN. § 257.003 (West 2010) (governing hospital's nurse
        staffing policies); 22 TEX. ADMIN. CODE § 217.19(m); id. § 217.11(1)(B), (T) (2011)
        (Tex. Bd. of Nursing, Standards of Nursing Practice); id. § 217.12(1)(E) (2011)


Although the foregoing establishes the Board's basis for dismissing appellants' charge, it does not
reference the Hospital's charge or indicate whether a complaint will be issued as to the Hospital's charge.
        4
           The current version of section 301.4025 of the Texas Occupations Code incorporates
amendments from the 2011 legislative session, which became effective on September 1, 2011. See Act of
Mar. 17, 2011, 82nd Leg., R.S., ch. 877, § 4, 2011 Tex. Gen. Laws 2222, 2223–24 (to be codified at TEX.
OCC. CODE ANN. § 301.4025). As a result, appellants' causes of action are governed by the prior version of
the statute cited above.
                                                    6
       (Tex. Bd. of Nursing, Unprofessional Conduct); 25 TEX. ADMIN. CODE § 133.41(o)
       (date) (Tex. Dep't of State Health Servs., Hospital Functions and
       Services—Nursing Services); id. § 448.201 (2011) (Tex. Dep't of State Health
       Servs., Standard of Care Applicable to All Providers). Appellants alleged that
       their protected reports, as detailed above, were the Hospital's motivating factors in
       suspending and terminating their employment.

       3.      By suspending and terminating appellants after they refused to perform ICU
       charge nurse duties, the Hospital violated section 301.352 of the Texas
       Occupations Code, which creates a cause of action for discrimination and
       retaliation based on a nurse's refusal to perform duties that constitute grounds for
       reporting the nurse to the the Texas Board of Nursing. See TEX. OCC. CODE
       ANN. § 301.352 (West 2012); see also Act of May 20, 2009, 81st Leg., R.S., ch.
       742, § 3, 2009 Tex. Gen. Laws 1880, 1884 (amended 2011) (current version at
       TEX. OCC. CODE ANN. § 301.413 (West 2012)). 5 Appellants alleged that
       performing those duties would have violated certain standards of care imposed on
       nurses by the Texas Administrative Code.             See TEX. ADMIN. CODE §§
       217.11(1)(B), (T), 217.12(1)(E). Appellants alleged that their protected refusals to
       perform charge nurse duties were the Hospital's motivating factors in suspending
       and terminating their employment.

       The Hospital filed a plea to the jurisdiction in response to appellants' state law

claims, arguing that appellants' state law claims were preempted by the NLRA because:

the facts set forth in appellants' petition are the same as the facts involved in the charges

before the NLRB; the state law claims involve activity "arguably protected [by] or

prohibited" under the Act; and the Hospital's defense to the state law claims "is grounded"

in the Act. The Hospital attached to its plea the parties' NLRB charges, the NLRB's

administrative dismissal of appellants' charge, and appellants' appeal of that dismissal.

Although acknowledging that their lawsuit involved largely the same facts as the charges

pending before the NLRB, appellants responded that their lawsuit involved issues of state

law—namely, whistleblower protections enacted by the Texas Legislature—over which
       5
           The current version of section 301.413 of the Texas Occupations Code incorporates
amendments from the 2011 legislative session, which became effective on September 1, 2011. See Act of
May 23, 2011, 82nd Leg., R.S., ch. 877, § 6, 2011 Tex. Gen. Laws 2222, 2224–25 (codified at TEX. OCC.
CODE ANN. § 301.413 (West 2012)). As a result, appellants' causes of action are governed by the prior
version of the statute cited above.
                                                 7
the NLRB has no jurisdiction or other authority, and the NLRA therefore does not preempt

those state law claims. After a hearing, the trial court granted the Hospital's plea to the

jurisdiction. The trial court later denied a motion for new trial filed by appellants, and this

appeal followed.

                                  II. Standard of Review

       A plea to the jurisdiction is a dilatory plea; its purpose is "to defeat a cause of action

without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's jurisdiction

over the subject matter of a pleaded cause of action. Tex. Dep't of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Parks & Wildlife Dep't v. Morris, 129

S.W.3d 804, 807 (Tex. App.—Corpus Christi 2004, no pet.). Subject matter jurisdiction

is a question of law; therefore, an appellate court reviews de novo a trial court's ruling on

a plea to the jurisdiction. Miranda, 133 S.W.3d at 226; Morris, 129 S.W.3d at 807.

       The plaintiff bears the burden to allege facts affirmatively demonstrating the trial

court's jurisdiction to hear a case. Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867

(Tex. 2002) (per curiam); Morris, 129 S.W.3d at 807. When a trial court's decision

concerning a plea to the jurisdiction is based on the plaintiff's pleadings, we accept as true

all factual allegations in the pleadings to determine if the plaintiff has met its burden to

plead facts sufficient to confer jurisdiction on the court. Dallas Area Rapid Transit v.

Whitley, 104 S.W.3d 540, 542 (Tex. 2003); Morris, 129 S.W.3d at 807. We examine the

pleader's intent and construe the pleadings in the plaintiff's favor. County of Cameron v.

Brown, 80 S.W.3d 549, 555 (Tex. 2002); Ramirez, 74 S.W.3d at 867. A plea to the

jurisdiction may be granted without allowing the plaintiff to amend if the pleadings
                                               8
affirmatively negate the existence of jurisdiction. Brown, 80 S.W.3d at 555; Ramirez, 74

S.W.3d at 867. If a plea to the jurisdiction challenges the existence of jurisdictional facts,

we consider relevant evidence submitted by the parties. City of Waco v. Kirwan, 298

S.W.3d 618, 622 (Tex. 2008) (citing Miranda, 133 S.W.3d at 227); see Bland Indep. Sch.

Dist., 34 S.W.3d at 555.

                                      III. Discussion

       By one issue, appellants argue that the trial court erred in granting the Hospital's

plea to the jurisdiction because the NLRA does not preempt their state law claims.

Appellants argue that the common factual basis of the NLRB charge and state law claims

is irrelevant to the preemption analysis, that the proper focus is whether the two cases

involve identical inquiries. Because their lawsuit involves distinct state law policies over

which the NLRB has no jurisdiction, appellants argue that the inquiries are not identical

and that the preemption doctrine therefore does not apply in this case.

A. The Preemption Doctrine

              When it is clear or may fairly be assumed that the activities which a
       State purports to regulate are protected by [section 7] of the National Labor
       Relations Act, or constitute an unfair labor practice under [section] 8, due
       regard for the federal enactment requires that state jurisdiction must yield.
       To leave the States free to regulate conduct so plainly within the central aim
       of federal regulation involves too great a danger of conflict between power
       asserted by Congress and requirements imposed by state law.

San Diego Bldg. Trades Council, Millman's Union, Local 2020 v. Garmon, 359 U.S. 236,

245 (1959); see Banfield v. Laidlaw Waste Sys., 977 S.W.2d 434, 437 (Tex. App.—Dallas

1998, pet. denied). The Garmon preemption doctrine is broad in scope and applies to

any state cause of action that attaches liability to conduct that is arguably protected or

prohibited by federal labor law. See Kaufman v. Allied Pilots Ass'n, 274 F.3d 197,
                                              9
200–01 (5th Cir. 2001) (citing Garmon, 359 U.S. at 243; Mobile Mechanical Contractors

Ass'n, Inc. v. Carlough, 664 F.2d 481, 487 (5th Cir. 1981)). In determining whether state

law is preempted by federal labor law, we focus on the conduct that forms the basis of the

underlying claim, not the characterization of the claim under state law, and whether the

controversy presented to the state court is identical to, or different from, the controversy

that could have been presented to the NLRB. See Banfield, 977 S.W.2d at 437; see also

Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180,

194 (1978) (citations omitted).

       When the conduct at issue is of only peripheral concern to the federal law or

touches interests deeply rooted in local feeling and responsibility, the NLRA may not

preempt the state law regulating that conduct. See Garmon, 359 U.S. at 243–44; see

also Belknap, Inc. v. Hale, 463 U.S. 491, 498 (1983); Local 926, Int'l Union of Operating

Eng'rs, AFL-CIO v. Jones, 460 U.S. 669, 676 (1983). In the latter case—where the

conduct implicates a deeply-rooted state policy—"the state's interest in controlling or

remedying the effects of the conduct is balanced against both the interference with the

Board's ability to adjudicate controversies committed to it by the Act . . . and the risk that

the state will sanction conduct that the Act protects." Belknap, 463 U.S. at 498–99; see

also Windfield v. Groen Div., Dover Corp., 890 F.2d 764, 767 (5th Cir. 1989).

B. The NLRA

       Section 7 of the NLRA guarantees employees 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."        29 U.S.C. § 157 (2006).
                                             10
Employers are prohibited from interfering with these protected, concerted rights by

section 8 of the NLRA. Id. § 158(a)(1)–(5) (2006) (defining as unfair labor practices:

actions by employers that interfere with employees' rights to protected concerted

activities; retaliation against employees for engaging in protected, concerted activities;

and refusing to bargain in good faith with employees' designated union representatives).

        However, relevant to this case in particular, the Act requires unions that are

planning a work stoppage at a health care institution to give ten days' notice of the date

and time of the stoppage to the hospital. Id. § 158(g). This provision governs partial

and full work stoppages. See N.Y. State Nurses Ass'n, 334 N.L.R.B. 798, 800–01

(2001) (interpreting section 158(g) to cover any concerted work stoppage, such as a

concerted refusal to work overtime). Further, any union bargaining with an employer for

a first contract, which were the circumstances in this case,6 must give thirty days' notice

to the Federal Mediation and Conciliation Service before engaging in a work stoppage.

29 U.S.C § 158(d)(B). If the union fails to give these requisite notices, any employee

participating in the work stoppage is not engaged in a protected activity under section 7.

Id. § 158(d).

C. Whistleblower Claims

        Section 301.4025 of the Texas Occupations Code and title 22, section 217.19(m)

of the Texas Administrative Code create a whistleblower cause of action that protects

nurses who report conduct that exposes patients to substantial risk of harm as a result of

care that falls below accepted standards. See Act of May 26, 2007, 80th Leg., R.S., ch.


        6
            The record shows that the Hospital and nurses union were in the process of bargaining for their
first contract.
                                                    11
803, § 9, 2007 Tex. Gen. Laws 1662, 1664–65 (current version at TEX. OCC. CODE ANN. §

301.4025); see also 22 TEX. ADMIN. CODE § 217.19(m). Section 161.134 of the Texas

Health and Safety Code and title 25, section 133.43 of the Texas Administrative Code

create a whistleblower cause of action for hospital or other health care institution

employees who report violations of law or other rules and regulations governing the

health care institution. See TEX. HEALTH & SAFETY CODE ANN. § 161.134(a); see also 25

TEX. ADMIN. CODE § 133.43(b). Finally, sections 301.352 and 301.413 of the Texas

Occupations Code create a discrimination and retaliation cause of action for nurses who

refuse to perform duties that constitute grounds for reporting the nurse to the Texas Board

of Nursing. See TEX. OCC. CODE ANN. § 301.352(a), (a)-(1); see also Act of May 20,

2009, 81st Leg., R.S., ch. 742, § 3, 2009 Tex. Gen. Laws 1880, 1884 (current version at

TEX. OCC. CODE ANN. § 301.413(b)). Each of the foregoing causes of action requires a

plaintiff to prove that his or her whistleblowing or other protected behavior was the cause

of the employer's decision to discipline or terminate the employment of the plaintiff when it

did.   Tex. Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995)

(establishing a general causation standard to be applied in whistleblower and similar

cases: "the employee's protected conduct must be such that, without it, the employer's

prohibited conduct would not have occurred when it did").

D. Analysis

       Appellants' argument turns on their contention that the State of Texas has a

deeply-rooted interest in policing employers' discharges of whistleblowers, as evidenced

by the foregoing statutes and administrative provisions. Assuming this is true, we must

still balance the state's interest against the possibility that the state court action will
                                             12
interfere with the Board's jurisdiction to determine issues entrusted to it under the Act and

that the state court and Board proceedings will reach inconsistent results.             See

Windfield, 890 F.2d at 767.

       Here, as conceded by appellants, both proceedings are based on the same

operative facts. After one of the appellants, Gonzalez, was disciplined for not following

orders that she believed to be contrary to the laws and regulations imposed on nurses,

appellants and other union members delivered a petition to the Hospital stating that they

would no longer accept the duties of rotating ICU charge nurse because they believed the

nature of the ICU charge nurse position posed risks to both the health and safety of the

patients and to the licenses of the nurses. Appellants do not dispute that this was a

concerted action. True to that petition, the next time each of the appellants was ordered

to assume ICU charge nurse duties, he or she refused. The Hospital then suspended

appellants and eventually terminated their employment.

       Based on these facts, the Hospital brought the following issue before the NLRB:

whether the Hospital's discharge of appellants was prohibited by the Act or justified as a

result of appellants' alleged failure to give the proper notice. See 29 U.S.C. § 158(d)(B),

(g). Based on these facts, appellants also brought an issue before the NLRB: whether

their protestation of Gonzalez's disciplining and subsequent collective work stoppage

were protected, concerted activities under section 7 of the Act and whether the Hospital's

discipline and termination of their employment was therefore prohibited under section 8.

See id. §§ 157, 158(a)(1)–(5). And finally, based again on these same facts, appellants

brought an issue before the trial court in this case: whether their reporting of what they

believed to be violations of nursing regulations and refusals to accept ICU charge nurse
                                             13
assignments duty work were protected activities under Texas whistleblower and

employment discrimination statutes.

       Although the policy implications are different, our focus is not the characterization

of the claims. See Banfield, 977 S.W.2d at 437. Our focus is whether the conduct and

controversy underlying the claims are identical or different. See Sears, 436 U.S. at 194.

We believe the underlying controversies pending before both tribunals are identical:

why were appellants disciplined and fired? And this inquiry involves the determination of

a fundamental common element, causation.

       Where a purported NLRA violation and a state law claim share a fundamental

common element, the risk of state court interference with the Board's jurisdiction is

"obvious and substantial." Jones, 460 U.S. at 683. In such a case, "the proof required

for the state law claim . . . [would] overlap[] too much with that [required] for [the] unfair

labor practice charge" and the "risk of inconsistent results between the state court and the

NLRB" would, accordingly, be too high. See Windfield, 890 F.2d at 770 (analyzing

Jones, 460 U.S. at 682–83). In its plea to the jurisdiction, the Hospital asserted that its

defense to appellants' state law claims is grounded in the Act, i.e., that its firing of

appellants was justified because they failed to give the required notice of their collective

work stoppage. See 29 U.S.C. § 158(d)(B), (g). Whether the Hospital was justified in

suspending appellants and terminating their employment based on their failure to give the

notice required under the Act is a question for the Board. Even though appellants claim

in their state lawsuit that their firings were motivated by their whistleblowing activities, the

pleadings show that their firings occurred at the same time and in the context of their

collective work stoppage. So to prove causation—that their whistleblowing or other
                                              14
protected activities were the cause of the Hospital's decision to terminate appellants

when it did, see Hinds, 904 S.W.2d at 636—appellants would be required to respond to

the Hospital's defense under the Act. Allowing the trial court to take up the issue of

proper notification under the Act in its determination of causation in appellants' state law

actions would interfere with the Board's exclusive jurisdiction to settle issues of federal

labor law. See Garmon, 359 U.S. at 245; Kaufman, 274 F.3d at 200–01 (holding that the

preemption doctrine is broad in scope and should be applied to any state law cause of

action that applies to conduct arguably covered by the Act). The evidence before us

shows that appellants' challenge of the regional director's dismissal is still pending, and

no complaint has been issued on the Hospital's charge. See Kirwan, 298 S.W.3d at 622

(permitting the court to consider relevant evidence when jurisdictional facts are at issue).

Letting the state law claims to go forward would have permitted appellants to relitigate the

operative facts of the charges already pending before the Board and, therefore, posed too

high a risk of inconsistent adjudications. See Windfield, 890 F.2d at 767, 770; see also

Jones, 460 U.S. at 682–83. Preemption was the correct answer in this case.

       Based on the pleadings and evidence before the trial court, we conclude that the

court did not err in determining that appellants' state law claims were preempted by

federal labor law. See Morris, 129 S.W.3d at 807; see also Kirwan, 298 S.W.3d at 622.

And because the causes of action pleaded by appellants involve an identical inquiry as

the controversy before the Board, we also conclude that appellants' pleadings

affirmatively negate the existence of jurisdiction; in other words, we see no way

appellants could amend their pleadings to add whistleblower or other employment

discrimination claims that would not be preempted. See Brown, 80 S.W.3d at 555. The
                                            15
trial court correctly granted the Hospital's plea to the jurisdiction and dismissed

appellants' case with prejudice. Appellants' issue is overruled.

                                    IV. Conclusion

      We affirm the judgment of the trial court.



                                                              NELDA V. RODRIGUEZ
                                                              Justice

Delivered and filed the 19th
day of December, 2013.




                                           16
