# NLRB Division of Advice Memorandum, Case No. 27-CA-181096 (Evraz Rocky Mountain Steel Mills): Evraz Rocky Mountain Steel Mills (27-CA-181096) > Federal · Agency guidance · In force URL: https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_27-CA-181096 ## Section - **Citation:** NLRB Division of Advice Memorandum, Case No. 27-CA-181096 (Evraz Rocky Mountain Steel Mills) - **Heading:** Evraz Rocky Mountain Steel Mills (27-CA-181096) - **Jurisdiction:** Federal - **Kind:** Agency guidance - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** NLRB Division of Advice Memoranda (rolling 10-year window) / Evraz Rocky Mountain Steel Mills (27-CA-181096) ## Text 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. 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Check the current official text before relying on it. Not legal advice.