Evraz Rocky Mountain Steel Mills (27-CA-181096)

Case 27-CA-181096

- 3 -

including both Employer and Union representatives, mistakenly thought the

had actually said “a few,” thereby admitting that

had recorded

private management caucuses in the past.4

Thereafter, on May 10, the Employer terminated the

,

ostensibly for recording management caucuses, after previous disciplinary actions. In

its provisional discharge notice, and in the termination meeting, the Employer noted

that the

had admitted to recording management caucuses in the

past, apparently without contradiction from the Union. In the termination meeting,

the Employer stated that the

was being terminated for

eavesdropping illegally under Federal and state law, because

was recording

without a consenting party in the room, and possibly bad faith bargaining under the

NLRA. A day or two after the termination meeting, the Employer’s human resources

manager told a Union representative, “if this thing goes to a Board charge or anything

else, which [the

] has every right to do, we’re throwing the

kitchen sink at it, and it’ll include the International.” The human resources manager

also said that the Employer would “react” to any Board charges.

On May 16, the Union filed a charge (Case 27-CA-176261), alleging that the

’s termination violated Section 8(a)(1), (3), and (4) of the Act.5 The

Region found merit to these allegations, and has not submitted Case 27-CA-176261

for advice.

On June 9, the Employer filed a lawsuit in Colorado state court against the

, as an individual, over the alleged unlawful recording made in the

April 27 grievance meeting. The lawsuit, which seeks, among other things, at least

$100,000 in damages, includes three counts based on Colorado law and one count

based on federal law

legations, and has not submitted Case 27-CA-176261

for advice.

On June 9, the Employer filed a lawsuit in Colorado state court against the

, as an individual, over the alleged unlawful recording made in the

April 27 grievance meeting. The lawsuit, which seeks, among other things, at least

$100,000 in damages, includes three counts based on Colorado law and one count

based on federal law. The state claims are: (1) “Misappropriation of trade secrets”

under the Colorado Uniform Trade Secrets Act;6 (2) “Negligence per se,” also citing

the Colorado Uniform Trade Secrets Act; and (3) “Intentional concealment,” again

lawsuit, but the lawsuit was dismissed before the recording was provided to the

Employer.

4 Prior to the termination of the

and the filing of the lawsuit at

issue here, the Employer gathered statements from both management and Union

participants in the April 27 meeting confirming their belief that the

had admitted that

had recorded management caucuses in the past.

5 The charge in Case 27-CA-176261 was amended on August 31.

6 COLO. REV. STAT. § 7-74-101, et seq.

(b) (6), (b) (7)(C

(b) (6),

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C

(b) (6), (b) (7)(C

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (

Case 27-CA-181096

- 4 -

citing the Colorado Uniform Trade Secrets Act. The Federal claim is “Interception

and disclosure of oral communications,” under the Federal Wiretapping Act.7

On July 28, the Union filed the charge in the instant case, alleging that the

lawsuit violates Section 8(a)(1), (3), and (4) of the Act, as it was unlawfully motivated,

retaliatory, and preempted by Federal law

27-CA-181096

- 4 -

citing the Colorado Uniform Trade Secrets Act. The Federal claim is “Interception

and disclosure of oral communications,” under the Federal Wiretapping Act.7

On July 28, the Union filed the charge in the instant case, alleging that the

lawsuit violates Section 8(a)(1), (3), and (4) of the Act, as it was unlawfully motivated,

retaliatory, and preempted by Federal law. On September 26, the Region issued a

Consolidated Complaint in Cases 27-CA-176261 and 27-CA-181096,8 and sent the

Employer a Loehmann’s Plaza9 letter, informing the Employer that state court

jurisdiction in the lawsuit was preempted by the issuance of the Consolidated

Complaint. The same day, the Employer filed with the state court a motion to dismiss

the lawsuit without prejudice.10 On October 21, the state court dismissed the lawsuit

without prejudice, and awarded attorney fees to the

ACTION

We conclude that the Employer violated the Act by filing the three state law

counts of its lawsuit, as it lacked a reasonable basis in law and fact and the lawsuit

was filed with a retaliatory motive. We further conclude that the Employer did not

violate the Act by filing the Federal law count of the lawsuit, as the Employer

reasonably believed that it would be able to show that the

unlawfully recorded the management caucus.

It is well established that the Board may find the filing and prosecution of a

lawsuit to be an unfair labor practice only when the lawsuit: (1) lacks a reasonable

basis in law or fact; and (2) was commenced with the motive of retaliating against the

exercise of Section 7 protected activities.11 A lawsuit will be deemed objectively

7 18 U.S.C. 2510, et seq.

8 The Region has since withdrawn the Consolidated Complaint and submitted the

instant case for advice as to the lawfulness of the Employer’s lawsuit.

9 See Loehmann’s Plaza, 305 NLRB 663, 699-71 (1991), supplemented by 316 NLRB

109 (1995), aff’d sub nom. UFCW Local 880 v. NLRB, 74 F.3d 292 (D.C. Cir

7 protected activities.11 A lawsuit will be deemed objectively

7 18 U.S.C. 2510, et seq.

8 The Region has since withdrawn the Consolidated Complaint and submitted the

instant case for advice as to the lawfulness of the Employer’s lawsuit.

9 See Loehmann’s Plaza, 305 NLRB 663, 699-71 (1991), supplemented by 316 NLRB

109 (1995), aff’d sub nom. UFCW Local 880 v. NLRB, 74 F.3d 292 (D.C. Cir. 1996),

cert. denied sub nom. Teamsters Local 243 v. NLRB, 519 U.S. 809 (1996).

10 The Employer stated in its motion that it intended to file complaint in Federal

court alleging that the

violated the Federal Wiretapping Act,

but no Federal court lawsuit has been filed as yet.

11 Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 743-44 (1983); BE & K

Construction Co., 351 NLRB 451, 456-58 (2007).

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Case 27-CA-181096

- 5 -

baseless when its factual or legal claims are such that “no reasonable litigant could

realistically expect success on the merits.”12 Where a charge alleges as baseless a

lawsuit that has not been fully litigated, the General Counsel’s burden is to prove that

the respondent, when it filed its complaint or during the pendency of the lawsuit, “did

not have and could not reasonably have believed it could acquire through discovery or

other means evidence needed to prove essential elements of its causes of action.”13

The Board, in assessing whether the respondent could satisfy the essential elements

of its causes of action, must evaluate the evidence the General Counsel offered to

satisfy his burden of proof while also considering the respondent’s evidence to the

contrary.14

In making its determination, the Board cannot make credibility resolutions or

draw inferences from disputed facts so as to usurp the fact-finding role of the jury or

judge.15 At the same time, the Board’s inquiry need not be limited to the bare

pleadings.16 Where a respondent fails

ffered to

satisfy his burden of proof while also considering the respondent’s evidence to the

contrary.14

In making its determination, the Board cannot make credibility resolutions or

draw inferences from disputed facts so as to usurp the fact-finding role of the jury or

judge.15 At the same time, the Board’s inquiry need not be limited to the bare

pleadings.16 Where a respondent fails to present the Board with any evidence

demonstrating a reasonable belief that it could acquire the necessary factual support

for its claim through discovery or other means, a lawsuit may be enjoined as an unfair

labor practice prior to completion.17

12 BE&K Construction Co., 351 NLRB at 457.

13 Milum Textile Services Co., 357 NLRB 2047, 2053 (2011). By contrast, where a

lawsuit or a major part of a lawsuit has been litigated to completion, the Board will

evaluate the actual arguments and evidence presented by the respondent to

determine whether it had reasonable grounds for seeking relief. Id. at 2052.

14 Id.

15 Bill Johnson’s, 461 U.S. at 744-46; Atelier Condominium & Cooper Square Realty,

361 NLRB No. 111, slip op. at 3 & n.20 (Nov. 26, 2014) (quoting Beverly Health &

Rehabilitation Services, 331 NLRB 960, 962 n.6 (2000)), enforced, 653 F. App’x 62 (2d

Cir. 2016).

16 Bill Johnson’s, 461 U.S. at 744-46.

17 Id. at 746; Atelier Condominium & Cooper Square Realty, 361 NLRB No. 111, slip

op. at 4 & n.25.

are Realty,

361 NLRB No. 111, slip op. at 3 & n.20 (Nov. 26, 2014) (quoting Beverly Health &

Rehabilitation Services, 331 NLRB 960, 962 n.6 (2000)), enforced, 653 F. App’x 62 (2d

Cir. 2016).

16 Bill Johnson’s, 461 U.S. at 744-46.

17 Id. at 746; Atelier Condominium & Cooper Square Realty, 361 NLRB No. 111, slip

op. at 4 & n.25.

Case 27-CA-181096

- 7 -

these circumstances, when the Employer had clear knowledge of, and consented to,

the

recording of the parties’ bilateral meetings, the Employer

had no reasonable basis on which to allege that such recording was unlawful in any of

the counts of its lawsuit.

Each of the counts of the Employer’s lawsuit, however, also alleged as unlawful

the

recording of the private management caucus, to which the

Employer did not consent. Thus, as the Employer could prevail on each count of its

lawsuit by showing that this conduct was unlawful, we must examine those

allegations as well.

The state-law misappropriation of trade secrets, negligence per se, and

intentional concealment causes of action also lacked a reasonable basis even

to the extent they concerned recording of the private management caucus.

a.

Misappropriation of trade secrets

The Employer alleged in its lawsuit that the

recording

constituted an unlawful misappropriation of a trade secret under Colorado law. This

allegation is based in the Colorado Uniform Trade Secrets Act,21 which makes

unlawful the misappropriation or acquisition of a “trade secret” by improper means,

including espionage through electronic or other means

Misappropriation of trade secrets

The Employer alleged in its lawsuit that the

recording

constituted an unlawful misappropriation of a trade secret under Colorado law. This

allegation is based in the Colorado Uniform Trade Secrets Act,21 which makes

unlawful the misappropriation or acquisition of a “trade secret” by improper means,

including espionage through electronic or other means. A violation of this statute can

occur without any actual use or commercial implementation of the misappropriated

trade secret; the act of misappropriation consists of the improper acquisition or

disclosure of the trade secret.22

The statutory definition of a trade secret includes several types of information:

“the whole or any portion or phase of any scientific or technical information, design,

process, procedure, formula, improvement, confidential business or financial

information, listing of names, addresses, or telephone numbers, or other information

relating to any business or profession which is secret and of value.”23 Colorado courts

have stated that “[a]n exact definition of a trade secret may not be possible,” but

21 COLO. REV. STAT. § 7-74-101, et seq.

22 See, e.g., L-3 Commc’ns Corp. v. Jaxon Eng’r & Maint., Inc., 125 F. Supp. 3d 1155,

1180-81 (D. Colo. 2015).

23 See COLO. REV. STAT. § 7-74-102(4).

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

olorado courts

have stated that “[a]n exact definition of a trade secret may not be possible,” but

21 COLO. REV. STAT. § 7-74-101, et seq.

22 See, e.g., L-3 Commc’ns Corp. v. Jaxon Eng’r & Maint., Inc., 125 F. Supp. 3d 1155,

1180-81 (D. Colo. 2015).

23 See COLO. REV. STAT. § 7-74-102(4).

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Case 27-CA-181096

- 8 -

factors to be considered in recognizing a trade secret are:

(1) the extent to which the information is known outside the business,

(2) the extent to which it is known to those inside the business, i.e., by

the employees, (3) the precautions taken by the holder of the trade

secret to guard the secrecy of the information, (4) the savings effected

and the value to the holder in having the information as against

competitors, (5) the amount of effort or money expended in obtaining

and developing the information, and (6) the amount of time and

expense it would take for others to acquire and duplicate the

information.24

Applying these factors, Colorado courts have found a wide variety of business

information not to be trade secrets under certain circumstances, including an

employer’s employee-ranking information25 and customer or price lists.26 In doing so,

the courts have noted the difference between the precautions taken to protect trade

secrets and “normal business precautions,”27 emphasizing the necessity of showing a

much higher level of effort or money expended, and precautions taken, in order to

demonstrate a trade secret.

Here, even if the

recording constituted a

“misappropriation,” the Employer has offered no evidence or argument that would

support a finding that the management caucus discussed any trade secret.28 Thus,

the caucus was called solely for the purpose of discussing the particular grievances at

issue between the parties, and did not involve any larger confidential business issues

de secret.

Here, even if the

recording constituted a

“misappropriation,” the Employer has offered no evidence or argument that would

support a finding that the management caucus discussed any trade secret.28 Thus,

the caucus was called solely for the purpose of discussing the particular grievances at

issue between the parties, and did not involve any larger confidential business issues.

By all indications, the only subjects discussed in the caucus were, at most, the ad hoc

determinations of the management team as to particular disciplinary actions or the

24 Porter Indus., Inc. v. Higgins, 680 P.2d 1339, 1341 (Colo. Ct. App. 1984) (quoting

Sw. Bell Tel. Co. v. State Corp. Comm’n, 6 Kan. App. 2d 444, 448, 629 P.2d 1174, 1178

(Kan. Ct. App. 1981)).

25 See Atmel Corp. v. Vitesse Semiconductor Corp., 30 P.3d 789, 795-96 (Colo. Ct. App.

2001).

26 See, e.g., Colorado Supply Co., Inc. v. Stewart, 797 P.2d 1303, 1305-07 (Colo. Ct.

App. 1990).

27 Id. at 1306.

28 We note that the only statutory definition of trade secret relied upon by the

Employer in its lawsuit is “confidential business or financial information that is secret

and of value.”

(b) (6), (b) (7)(C)

Case 27-CA-181096

- 9 -

application of particular Employer policies. Such discussions would not involve

information “of value” vis-à-vis competitors, or information that the Employer had

invested great expense in developing or taken great precautions in guarding, so as to

constitute a trade secret under Colorado law. Indeed, the results of these discussions

would likely be made known to the Union immediately or soon after the caucus

concluded. In any case, the Employer has offered no evidence or argument that might

demonstrate that the Employer had a reasonable belief that the management caucus

discussed a trade secret

great precautions in guarding, so as to

constitute a trade secret under Colorado law. Indeed, the results of these discussions

would likely be made known to the Union immediately or soon after the caucus

concluded. In any case, the Employer has offered no evidence or argument that might

demonstrate that the Employer had a reasonable belief that the management caucus

discussed a trade secret. Therefore, in the absence of any indication that the

management team was discussing a trade secret when it was recorded by the

we conclude that the Employer had no reasonable basis in law or

fact for alleging a violation of the Colorado Uniform Trade Secrets Act.29

b.

Negligence per se

In addition, the Employer alleged that the

recording also

constituted “negligence per se” under Colorado law. “To state a prima facie case of

negligence, a plaintiff must establish that the defendant owed plaintiff a duty which

was breached and the breach of that duty proximately caused the plaintiff’s injury.”30

Significantly, the duty asserted by the Employer is the same duty to refrain from

misappropriating a trade secret set forth in the Colorado Uniform Trade Secrets Act,

discussed above. Therefore, as we have concluded that the Employer had no

reasonable basis for alleging that any trade secret was at issue here, and such a

finding would also be necessary to sustain the Employer’s negligence per se cause of

action, we further conclude that the Employer also had no reasonable basis for its

negligence allegation.

c

the Colorado Uniform Trade Secrets Act,

discussed above. Therefore, as we have concluded that the Employer had no

reasonable basis for alleging that any trade secret was at issue here, and such a

finding would also be necessary to sustain the Employer’s negligence per se cause of

action, we further conclude that the Employer also had no reasonable basis for its

negligence allegation.

c.

Intentional concealment

Similarly, to establish its allegation of intentional concealment (or fraudulent

concealment, as it is more generally known), the Employer would have to establish

that the

had a legal duty to disclose a “material fact,”31 i.e., that

29 If the Employer submits evidence demonstrating that the April 27 management

caucus actually discussed bona fide trade secrets as defined by the Colorado Uniform

Trade Secrets Act, despite its failure to do so as yet, the Region should contact the

Division of Advice.

30 Lyons v. Nasby, 770 P.2d 1250, 1254 (Colo. 1989) (quoting Leake v. Cain, 720 P.2d

152, 155 (Colo. 1986)).

31 See, e.g., Burman v. Richmond Homes Ltd., 821 P.2d 913, 918 (Colo. App. Ct. 1991)

(“to establish a claim for fraudulent concealment or nondisclosure, plaintiff must

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C

(b) (6), (b) (7)(C)

Case 27-CA-181096

- 10 -

was recording a management caucus that involved a trade secret. Therefore, as we

have concluded that the Employer had no reasonable basis for alleging that any trade

secret was at issue here, and such a finding would also be necessary to sustain the

Employer’s intentional concealment cause of action, we further conclude that the

Employer had no reasonable basis for its intentional concealment allegation as well.

The Employer had a reasonable basis for the Federal law cause of action

concerning recording of the private management caucus

ng that any trade

secret was at issue here, and such a finding would also be necessary to sustain the

Employer’s intentional concealment cause of action, we further conclude that the

Employer had no reasonable basis for its intentional concealment allegation as well.

The Employer had a reasonable basis for the Federal law cause of action

concerning recording of the private management caucus.

In contrast to the state law counts of its lawsuit, we conclude that the Employer

had a reasonable basis for the Federal cause of action in its lawsuit, “Interception and

disclosure of oral communications” under the Federal Wiretapping Act,32 because the

Employer reasonably believed that it would be able to show that the

acted unlawfully by intentionally recording the management caucus. The

Federal Wiretapping Act makes it unlawful, inter alia, for any person to intentionally

intercept or endeavor to intercept any oral communication in which other parties had

a reasonable expectation of privacy.33 This statute has been found to apply to placing

a cell phone on a table to record a conversation,34 and specifically to the interception

of a cell phone conversation between a union’s president and chief negotiator during

contract negotiations.35

Here, there is no dispute that, by recording the private management caucus, the

intercepted oral communications that were part of

conversations in which the management team had a reasonable expectation of

privacy. We further conclude that the Employer reasonably believed that it would be

able to show that the

intentionally recorded the management

show that a defendant had a duty to disclose information”); Berger v. Sec. Pac. Info.

Sys., Inc., 795 P.2d 1380, 1383 (Colo. Ct. App. 1990) (same).

32 18 U.S.C. 2510, et seq.

33 Id.

34 See, e.g., Aldrich v. Ruano, 952 F. Supp. 2d 295, 302-03 (D. Mass. 2013).

35 See Bartnicki v. Vopper, 532 U.S

ly believed that it would be

able to show that the

intentionally recorded the management

show that a defendant had a duty to disclose information”); Berger v. Sec. Pac. Info.

Sys., Inc., 795 P.2d 1380, 1383 (Colo. Ct. App. 1990) (same).

32 18 U.S.C. 2510, et seq.

33 Id.

34 See, e.g., Aldrich v. Ruano, 952 F. Supp. 2d 295, 302-03 (D. Mass. 2013).

35 See Bartnicki v. Vopper, 532 U.S. 514, 517-18, 530 n.16 (2001) (accepting that “the

interception was intentional, and therefore unlawful,” and noting that the statute

particularly reflects Congress’ concerns regarding private surveillance “in domestic

relations and industrial espionage situations”) (quoting S. Rep. No. 1097, at 225

(1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2274).

(b) (6),

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Case 27-CA-181096

- 12 -

prior animus toward protected rights;39 and a request for damages in excess of actual

damages.40 And, although a lawsuit’s baselessness alone is insufficient to establish

retaliatory motive, the Board will consider it as one factor in its analysis of motive.41

Here, the evidence clearly demonstrates that the Employer filed its lawsuit with

a retaliatory motive. Thus, the lawsuit was aimed at conduct the Region has already

concluded was protected under the Act; there is ample evidence of prior animus,

including the Employer’s threats to file a lawsuit if the Union filed Board charges;

and the lawsuit seeks over $100,000 in damages, despite there being no evidence of

any damages at all. Finally, the state law counts of the lawsuit are clearly baseless,

as discussed above. Therefore, we conclude that the Employer violated Section 8(a)(1)

of the Act by filing the three counts of the lawsuit based on state law.42

The state law counts of the Employer’s lawsuit were preempted by Federal

law only after the Region issued its Consolidated Complaint

vidence of

any damages at all. Finally, the state law counts of the lawsuit are clearly baseless,

as discussed above. Therefore, we conclude that the Employer violated Section 8(a)(1)

of the Act by filing the three counts of the lawsuit based on state law.42

The state law counts of the Employer’s lawsuit were preempted by Federal

law only after the Region issued its Consolidated Complaint.

We further conclude that the state law counts of the Employer’s lawsuit were

preempted by Federal law only after the Region issued its Consolidated Complaint

finding the

’s conduct to be protected under the Act,43 and were

39 Atelier Condominium & Cooper Square Realty, 361 NLRB No. 111, slip op. at 6;

Milum Textile Services Co., 357 NLRB at 2052.

40 See, e.g., Federal Security, Inc., 336 NLRB 703, 708 (2001); Phoenix Newspapers,

294 NLRB 47, 49-50 (1989); H.W. Barss Co., 296 NLRB 1286, 1287-88 (1989).

41 See, e.g., Atelier Condominium & Cooper Square Realty, 361 NLRB No. 111, slip op.

at 6; Milum Textile Services Co., 357 NLRB at 2052 n.22; Allied Mechanical Services,

357 NLRB 1223, 1234 (2011), enforcement denied, 734 F.3d 486 (6th Cir. 2013).

42 The Employer’s lawsuit does not violate Section 8(a)(3) or 8(a)(4) of the Act because

the lawsuit only seeks monetary damages, and therefore does not seek to “discharge

or otherwise discriminate against” the

for filing the prior Board

charge over

termination.

43 See Loehmann’s Plaza, 305 NLRB at 699-71. As for the Federal count of the

Employer’s lawsuit, preemption analysis does not apply, as a federal claim is not

subject to preemption by another federal claim. See, e.g., Lupiani v. Wal-Mart Stores,

Inc., 435 F.3d 842, 846 (8th Cir. 2006) (“The Supreme Court and our sister circuits

have suggested in several instances that Garmon preemption is not implicated where

the potential conflict is between two federal statutes and not between a federal law

and a state law.”); Baker v. IBP, Inc., 357 F.3d 685, 688–89 (7th Cir

eemption by another federal claim. See, e.g., Lupiani v. Wal-Mart Stores,

Inc., 435 F.3d 842, 846 (8th Cir. 2006) (“The Supreme Court and our sister circuits

have suggested in several instances that Garmon preemption is not implicated where

the potential conflict is between two federal statutes and not between a federal law

and a state law.”); Baker v. IBP, Inc., 357 F.3d 685, 688–89 (7th Cir. 2004) (noting

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b

Case 27-CA-181096

- 13 -

not preempted ab initio. Under Loehmann’s Plaza, when the activity at issue

constitutes arguably protected activity, preemption occurs only upon the Board’s

involvement in the matter, which begins when the General Counsel issues a

complaint regarding the same activity that is subject of the state court lawsuit.44 In

the instant case, that means that the Employer’s lawsuit became preempted only

after the Region issued the Consolidated Complaint. As the Employer filed its motion

to dismiss the lawsuit the same day the Region sent the Employer its Loehmann’s

Plaza letter, the Region should not include preemption allegations in any future

complaint in this case.

Accordingly, the Region should issue complaint, absent settlement, alleging that

the Employer violated Section 8(a)(1) of the Act by filing the three Colorado law

counts of its lawsuit. The Region should dismiss, absent withdrawal, the allegation

regarding the Federal law count of the lawsuit.

/s/

B.J.K.

ADV.27-CA-181096.Response.Evraz.

that “[f]ederal statutes do not ‘preempt’ other federal statutes . . . though one may

repeal another implicitly if they are irreconcilable”).

44 305 NLRB at 699-71

s of its lawsuit. The Region should dismiss, absent withdrawal, the allegation

regarding the Federal law count of the lawsuit.

/s/

B.J.K.

ADV.27-CA-181096.Response.Evraz.

that “[f]ederal statutes do not ‘preempt’ other federal statutes . . . though one may

repeal another implicitly if they are irreconcilable”).

44 305 NLRB at 699-71. While the General Counsel at one time argued that a state

court lawsuit against arguably protected conduct should be found to be preempted

from the date an unfair labor practice charge is filed alleging the conduct to be

protected (see Giant Food Stores, Case 04-CA-16264, Advice Memorandum dated

March 23, 1987), such a contention is now clearly foreclosed by the Board’s

subsequent decision in Loehmann’s Plaza, which expressly concluded that the

operative date for preemption is the General Counsel’s issuance of an unfair labor

practice complaint.

(b) (6), (b) (7