Madison Equities, Inc., Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0668

Madison Equities, Inc.,
Respondent,

vs.

SEIU MN State Council, et al.,
Appellants.

Filed March 22, 2021
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-CV-19-8170

Michael S. Mather, Kelly S. Hadac, HKM, P.A., St. Paul, Minnesota (for respondent)

Justin D. Cummins, Cummins & Cummins, LLP, Minneapolis, Minnesota (for appellants)

Considered and decided by Larkin, Presiding Judge; Cochran, Judge; and Gaïtas,
Judge.

NONPRECEDENTIAL OPINION
LARKIN, Judge
In this interlocutory appeal, appellant s challenge the district court’s denial of their
motion for judgment on the pleadings, arguing that federal labor law preempts respondent’s

2
state-law claims against appellants for defamation and tortious interference with business
relations. We affirm.
FACTS
Respondent Madison Equities, Inc. (Madison) is a real estate management company.
Madison sued appellants Service Employees International Union Local 26 (Local 26),
SEIU MN State C ouncil ( SEIU Council), and Christopher Lewis (Lewis), alleging
defamation and tortious interference with business relations.
According to Madison’s complaint, Local 26 posted a press release entitled
“Massive Wage Theft Scheme Alleged at Downtown St. Paul Buildings Run by Madison
Equities” on the website of SEIU Council. The press release stated that security officers
had made “wage theft complaints” to the Office of the Minnesota Attorney General (AG)
concerning “an alleged wage theft scheme that took thousands of dollars of wages from
workers.” According to the press release, the complaints to the AG alleged that Madison
“had employees work 40 hours under one company” and then work for a different company
“for time that sho uld have been overtime time -and-a-half pay,” resulting in the workers
being underpaid by thousands of dollars.
According to Madison’s complaint, Local 26, with the help of SEIU Council and
Lewis, also publicly posted a flyer stating, “Employees of Madison Equities could be at
risk for Wage Theft” and “several employees have filed claims over Thousands of Dollars
in wages owed due to unpaid Overtime hours.” Madison alleged that the press release and
flyer contained false and d efamatory statements that interfered with its business
relationships.

3
Appellants filed separate answers asserting, as an affirmative defense, that
Madison’s state-law claims are preempted by federal labor law. Based on that affirmative
defense, appellants moved for judgment on the pleadings . Appellants asked the district
court to take judicial notice of certain assertions outside of the pleadings and filed several
documents with the district court for that purpose , including a news article and a district
court order in a separate case involving Madison and the AG.
The d istrict court denied appellants’ motion for judgment on the pleadings ,
concluding that Madison’s claims are not preempted by federal law. In doing so, the court
did not consider “additional hearsay documents not attached to or referenced in the
pleadings.” This interlocutory appeal followed.1
DECISION
Minn. R. Civ. P. 12.03 provides, “After the pleadings are closed but within such
time as not to delay the trial, any party may mov e for judgment on the pleadings.” “To
withstand a motion for judgment on the pleadings, [ a plaintiff ] must state facts that, if
proven, would support a colorable claim and entitle it to relief.” Midwest Pipe Insulation,
Inc. v. MD Mech., Inc., 771 N.W.2d 28, 31 (Minn. 2009). A district court’s decision under
rule 12.03 is reviewed de novo. Id. We accept the facts alleged in the complaint as true,
and we “liberally construe the complaint and draw all inferences and assumptions in favor
of the nonmoving party,” here Madison. Hoffman v. N. States Power Co., 764 N.W.2d 34,

1 An interlocutory appeal is permitted for review of an order denying a motion to dismiss
for lack of subject -matter juris diction. See, e.g. , McGowan v. Our Savior’s Lutheran
Church, 527 N.W.2d 830, 832-33 (Minn. 1995).

4
45 (Minn. 2009). In doing so, we recognize that “[a] motion for judgment on the pleadings
is not a favored way of testing the sufficiency of a pleading, and will not be sustained if by
a liberal construction the pl eading can be held sufficient.” Ryan v. Lodermeier , 387
N.W.2d 652, 653 (Minn. App. 1986).
Garmon Preemption
Appellants contend that Madison’s claims are preempted under a doctrine
articulated in San Diego Bld g. Trades Counci l v. Garmon , which is known as Garmon
preemption. 359 U.S. 236, 244, 79 S. Ct. 773, 779 (1959). Congress’s power to preempt
state law arises under the Supremacy Clause, which provides that the laws of the United
States “shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby.” U.S. Const. art. VI, cl. 2. We review de novo whether federal law preempts state
law. Gretsch v. Vantium Capital, Inc., 846 N.W.2d 424, 428 (Minn. 2014).
Garmon preemption is rooted in Congress’s desire to maintain uniform application
of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 -169 (2012), which is a
“complex and interrelated federal scheme of law, remedy, and admini stration.” Int’l
Longshoremen’s Ass’n v. Davis , 476 U. S. 380, 389, 106 S. Ct. 1904, 1911 (1986)
(quotation omitted). Since 1935, the NLRA has been the principal expression of federal
labor law. Midwest Motor Express, Inc. v. Int’l Bhd. of Teamsters, 512 N.W.2d 881, 884
(Minn. 1994). The NLRA legitimizes “labor unionization and encourag[es] the practice of
collective bargaining.” Sears, Roebuck & Co. v. San Diego Cty. Dist. Council of
Carpenters, 436 U.S. 180, 190, 98 S. Ct. 1745, 1754 (1978). “Congress expressly
recognized that collective organization of segments of the labor force into bargaining units

5
capable of exercising economic power comparable to that possessed by employers may
produce benefits for the entire economy in the form of higher wages, job security, and
improved working conditions.” Id.
Under Garmon, state causes of action are presumptively preempted if they concern
conduct that is actually or “arguably” protected under section 7 or prohibited under section
8 of the NLRA. Belknap, Inc. v. Hale , 463 U.S. 491, 498, 103 S. Ct. 3172, 3177 (1983);
Garmon, 359 U.S. at 245, 79 S. Ct. at 780. Section 7 of the NLRA protects the rights of
employees to organize. 29 U.S.C. § 157; see Midwest Pipe, 771 N.W.2d at 31 (discussing
section 7). Section 8 prohibits unfair labor practices by employers and labor organizations.
29 U.S.C. § 158.
“When an activity is arguably subject to [section] 7 or [section] 8 of the [NLRA],
the [s]tates as well as the federal courts must defer to the exclusive competence of th e
National Labor Relations Board if the danger of state interference with national policy is
to be averted.” Sears, 436 U.S. at 187 -88, 98 S. Ct. at 1752 (quotation omitted). The
National Labor Relations Board (NLRB) “is charged with the responsibility of interpreting
and enforcing the [NLRA].” Stardyne, Inc. v. N.L.R.B., 41 F.3d 141, 147 (3d Cir. 1994).
There are two exceptions to Garmon preemption. Under the Garmon exceptions, a
cause of action based on conduct that is arguably protected under section 7 or prohibited
under section 8 is not preempted if: (1) the conduct is only a peripheral c oncern of the
NLRA or (2) the conduct “touches interests deeply rooted in local feeling and
responsibility.” Belknap, 463 U.S. at 498, 103 S. Ct. at 3177; see Garmon, 359 U.S. at
243-44, 79 S. Ct. at 779.

6
For example, i n Linn v. United Plant Guard Workers of Am. , Local 114 , the
Supreme Court held that false and defamatory statements made during a union organizing
campaign by the union and its officers were actionable under state law, so long as the
statements were made with actual malice and caused actual injury. 383 U.S. 53, 55, 86 S.
Ct. 657 , 659 (1966). The Court held that such defamation met both of the Garmon
exceptions because defamation was only a peripheral concern of the NLRA and states had
an overriding interest in protecting residents from malicious libels . Id. at 61, 86 S. Ct. at
662.
The Record
Before we consider whether Garmon preemption applies in this case , we must
determine the proper scope of the record before us. Appellants rely on information that is
not contained in the pleadings , asserting that this court may consider “ documents other
than the pleadings when those documents are m atters of public record or are ‘embraced’
by the pleadings. ” Appellants also challenge the district court’s refusal to take judicial
notice of certain facts.
In our de novo review of a ruling on a request for judgment on the pleadings, we are
permitted to examine “any documents or statements inc orporated by reference into the
pleadings.” Greer v. Prof’l Fiduciary, Inc. , 792 N.W.2d 120, 131 (Minn. App. 2011) .
Here, the press release and flyer are referenced in Madison’s complaint and serve as the
basis for Madison’ s lawsuit. We therefore consider those documents, draw ing all
inferences and assumptions in favor of Madison. See Hoffman, 764 N.W.2d at 45 . We
decline appellants’ request to consider documents that are not referenced in the pleadings.

7
As to judicial notice, “Judicial notice may be taken at any stage of the proceeding.”
Minn. R. Evid. 201(f). “A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial jurisdiction of the
[district] court or (2) capa ble of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” Minn. R. Evid. 201(b). A court’s
decision to take judicial notice is generally discretionary. Minn. R. Evid. 201(c). However,
Minn. R. Evid. 201 (d) directs a court to “take judicial notice if requested by a party and
supplied with the necessary information.”
Appellants requested judicial notice of the following facts: (1) at least six current
or former employees of Madison, including Lewis, pursued wage theft claims with the state
against Madison; (2) the state believes it has a reasonable basis to conclude that Madison
has engaged in the wage violations alleged by L ewis and other current or former
employees; (3) the state continues to investigate the pending wage claims despite
Madison’s unsuccessful legal action to stop the investigation; (4) current or former
employees of Madison, including Lewis, are pursuing empl oyee benefits claims with the
city against Madison; (5) Madison’s lawsuit arises from a labor dispute; and (6) SEIU
Council and Local 26 are labor organizations.
The district court accepted as true that SEIU Council and Local 26 are labor
organizations under the NLRA. SEIU Council and Local 26 asserted as much in their
respective pleadings. For the purposes of our review, w e accept that SEIU Council and
Local 26 are labor organizations as defined under the NLRA. See 29 U.S.C. § 152(5)
(defining “labor organization”).

8
But appellants’ remaining assertions are subject to reasonable dispute and, to some
degree, are challenged by Madison. A district court properly refuses to take judicial notice
of facts disputed by an adverse party. Paper v. Rent-A-Wreck, 463 N.W.2d 298, 300 (Minn.
App. 1990), review denied (Minn. Jan. 14, 1991) . In addition, appellants’ reliance on a
news article and a district court order in another case involving Madison and the AG as
support for judicial notice is unavailing . We do not view the news article as a source
“whose accuracy cannot reasonably be questioned .” Minn. R. Evid. 201(b). And, the
district court order regarded a civil investigative demand in a separate case ; in effect, the
matter had not proceeded beyond a discovery stage. See Madison Equities, Inc. v. Office
of Attorney General, No. A20-0434 (Minn. App. Jan. 11, 2021), pet. for review filed (Minn.
Feb. 10, 2021).
In sum, the proffered news article and district court order do not place appellants’
assertions beyond the realm of reasonable dispute. “Judicial notice is to be taken with
caution and every reasonable doubt as to the propriety of its exercise in a given case should
be resolved against it.” State ex rel. Remick v. Clousing, 285 N.W. 711, 714 (Minn. 1939).
The district court therefore did not abuse its discretion by denying, in part, appellants’
request for judicial notice. We decline the request for judicial notice as well.
The Relevant Conduct
Having determined the scope of the record, we next identify the relevant conduct,
which is appellants’ speech criticizing Madison’s wage practices. The relevant conduct is
not the alleged wage practices themselves. As previously discussed, we accept that SEIU
Council and Local 26 are lab or organ izations, and we therefore accept that labor

9
organizations published the challenged speech. Appellants assert that Lewis is a former
Madison employee and offer arguments based on that assertion. But neither the pleadings
nor the referenced documents state that Lewis is a former Madison employee. We therefore
do not accept that assertion as true at this stage in the proceeding. In sum, t he relevant
conduct is speech criticizing Madison’s wage practices, which was made public by labor
organizations.
Potential Application of the NLRA
We now determine whether the relevant conduct is arguably protected by section 7,
or prohibited by section 8, of the NLRA. See Healthcare Ass’n of N.Y. State, Inc. v. Pataki,
471 F.3d 87, 96 (2d Cir. 2006) (“The first step in establishing Garmon preemption is to
identify which provision of sections 7 or 8 is alleged to protect or prohibit the conduct
regulated.”).
Garmon preemption does not apply to all conduct “that touches or concerns in any
way the complex interrelationships between employees, employers, and unions.”
Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S.
274, 289, 91 S. Ct. 1909, 1919 (1971). The Supreme Court has consistently refused to
apply Garmon preemption “in a literal, mechanical fashion.” Sears, 436 U.S. at 188, 98 S.
Ct. at 1753.
“The precondition for pr e-emption, that the conduct be ‘arguably’ protected or
prohibited, is not without substance. It is not satisfied by a conclusory assertion
of pre-emption . . . .” Davis, 476 U.S. at 394, 106 S. Ct. at 1914. Rather, the party claiming
preemption must “demonstrate that his case is one that the [NLRB] could legally decide in

10
his favor.” Id. at 395, 106 S. Ct. at 1914. “The party must then put forth enough evidence
to enable the court to find that the [NLRB] reasonably could uphold a claim based on such
an interpretation.” Id.
Section 7 of the NLRA provides:
Employees shall have 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, and shall also
have the right to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in section 158(a)(3) of this title.

29 U.S.C. § 157.
Appellants do not identify a provision within section 7 that arguably protects their
conduct. Instead, appellants rely on cases that involved section 7 protections, such as Old
Dominion Branch No. 496 v. Austin, 418 U.S. 264, 94 S. Ct. 2770 (1974). In that case, the
Supreme Court recognized that section 7 provides unions with freedom-of-speech
protections.2 Old Dominion, 418 U.S. at 277, 94 S. Ct. at 2777-78. But the Supreme Court
indicated, consistent with section 7, that such protections arise in the context of union -
organizing efforts. Id. Likewise, in Int’l Longshoremen’s Local 1416 v. Ariadne Shipping
Co., the Supreme Court concluded that union picketing to protest wages was arguably
protected under section 7 because the union represented longshoremen in t he area, it was

2 Old Dominion concerned preemption arising from an executive order governing labor
relations, and not under the NLRA. 418 U.S. at 273, 94 S. Ct. at 2775-76. The Supreme
Court found the executive order analogous to the NLRA. Id.

11
seeking compliance with area standards , and the picketing occurred near the challenged
employer-ship. 397 U.S. 195, 196-97, 200-01, 90 S. Ct. 872, 873, 875 (1970).
Unlike the circumstances in Old Dominion and Ariadne Shipping, at this early stage
of the litigation, the limited record does not show that appellants’ conduct arose in the
context of union -organizing efforts. Indeed, appellants’ motivations are unclear and the
subject of dispute . See Sears, 436 U.S. at 185-86, 98 S. Ct. at 1751-52 (stating that the
union’s “purpose” is critical when determining whether conduct is prohibited or protected
under the NLRA).
Appellants also do not identify a provision within section 8 of the NLRA that
arguably prohibits their conduct . Section 8 is more extensive than section 7, and it
specifically prohibits various unfair labor practices by employers and labor organizations.
See 29 U.S.C. §§ 157, 158.
Once again, the relevant conduct here is appellants’ allegedly false publications, and
not Madison’s alleged failure to pay wages. Thus, the relevant conduct is not an unfair
labor practice by an employer. See 29 U.S.C. § 158(a) (listing unfair labor practices by
employer). As to unfair labor practices by labor organizations, section 8 prohibits, in some
instances, the following conduct: restraining employees from exercising section 7 rights;
causing an employer to discriminate against an employee; refusing to collectively bargain;
encouraging a strike; requiring excessive fees from employees; causing an employer to pay
an exaction for services not performed; and causing picketing of an employer to force
bargaining. 29 U.S.C. § 158(b). We have reviewed each of those pr ohibited practices in

12
light of the pleadings and cannot discern how any would arguably apply to appellants’
conduct.
Moreover, when considering Garmon preemption, the “critical inquiry” is
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 [NLRB] . For it is only in the form er
situation that a state court’s exercise of jurisdiction necessarily
involves a risk of interference with the unfair labor pr actice
jurisdiction of the [NLRB] which the arguably prohibited
branch of the Garmon doctrine was designed to avoid.

Sears, 436 U.S. at 197, 98 S. Ct. at 1757 -58; see also Midwest Pipe , 771 N.W.2d at 31
(indicating that preemption occurs if the state and federal laws are “brought to bear on the
same activity” (quotation omitted)).
When this court asked appellants to explain how Madison could present its claims
in the underlying lawsuit to the NLRB, appellants suggested that Madison might pursue a
claim under section 8(b)(4)(ii). “[S]ection 8(b)(4)(ii) of the NLRA makes it an unfair labor
practice for a union ‘to threaten, coerce, or restrain any person engaged in commerce’
where the goal is to force t he person ‘to cease doing business with any other person.’”
Midwest Pipe, 771 N.W.2d at 31 (quoting 29 U.S.C. § 158(b)(4)(ii)(B)).
Appellants’ theoretical claim would face a couple of hurdles. First, the Supreme
Court has said that “[t]he injury that t he [defamatory] statement might cause to an
individual’s reputation—whether he be an employer or union official—has no relevance to
the [NLRB’s] function.” Linn, 383 U.S. at 63, 86 S. Ct. 663. Second, the Supreme Court
has also said that the terms “threaten, coerce, or restrain,” as used in section 8(b)(4)(ii),
should be interpreted with caution and not given a broad sweep. Edward J. DeBartolo

13
Corp. v. Fla. Gulf Coast Bldg. & Const r. Trades Council , 485 U.S. 568, 578, 108 S. Ct.
1392, 1399 (1988). At this stage, there is no indication that appellants’ speech threatened,
coerced, or restrain ed any person engaged in commerce . This case is therefore unlike
Midwest Pipe , in which the pleading alleged that the union made a threat to force an
employer to break a contract. 771 N.W.2d at 30-33.
In sum, appellants do not persuade us that Madison could present its claims to the
NLRB, much less that the NLRB could reasonably uphold such claims. Thus, the critical
inquiry does not support applying Garmon preemption under section 8.
Moreover, section 8 contains a provision stating:
The expressing of any views, argument, or opinion, or
the dissemination thereof, whether in written, printed, graphic,
or visual form, shall not constitute or be evidence of an unfair
labor practice under any of the provisions of this subchapter, if
such e xpression contains no threat of reprisal or force or
promise of benefit.

29 U.S.C. § 158(c) (emphasis added). That provision “protects speech by both unions and
employers from regulation by the NLRB.” Chamber of Commerce v. Brown, 554 U.S. 60,
67, 128 S. Ct. 2408, 2413 (2008). Here, appellants’ publications do not contain any threats
or promises. Section 158(c) therefore supports a conclusion that appellants’ publications
do not constitute unfair labor practices that are subject to regulation by the NLRB.
Appellants cite several cases in support of their preemption argument, but none is
persuasive because in each case, the court found that the relevant conduct was arguably
prohibited by section 8 . For example, Wild Oats Mkts. , Inc., 336 N.L.R.B. 179, 179 -80
(2001), Saigon Gourmet Rest., Inc., 353 N.L.R.B. 1063, 1065 (2009), and Polly Drummond

14
Thriftway, Inc., 292 N.L.R.B. 331, 331-32 (1989), each involved unfair labor practices by
employers, in violation of identified provisions in section 8. Likewise, Nat’l Labor
Relations Bd. v. Washington Aluminum Co., 370 U.S. 9, 12-13, 82 S. Ct. 1099, 1102 (1962),
involved a violation of section 8: an employer’s discharge of employees for engaging in
conduct protected under section 7. In Edward J. DeBartolo Corp. , the conduct at issue
was a union’s alleged unfair labor practice in violation of section 8: union hand billing
aimed at dissuading customers from shopping at a mall’s stores unless the mall promised
to use contractors who paid fair wages. 485 U.S. at 570, 588, 108 S. Ct. at 1395, 1404.
The Supreme Court held that such hand billing did not constitute an unfair labor practice
by a union under section 8(b)(4). Id.
Reliance on a Labor Dispute
Instead of identifying an applicable provision of sections 7 or 8, appellants broadly
argue that a labor organization’s speech criticizing conditions of employment is always
preempted and that Garmon preemption forecloses state court jurisdiction over any “labor
dispute.” A “labor dispute” is defined by the NLRA as “any controversy concerning terms,
tenure or conditions of employment, or concerning the association or representation of
persons in negotiating, fixing, maintaining, changing , or seeking to arrange terms or
conditions of employmen t, regardless of whether the disputants stand in the proximate
relation of employer and employee.” 29 U.S.C. § 152(9).
As support for appellants’ assertion that the Garmon preemption applies to any labor
dispute, a ppellants primarily rely on Beverly Hills Foodland, Inc. v. United Food &
Commercial Workers Union, Local 655, which involved claims of defamation and tortious

15
interference based on a labor union’s picketing and boycotting activities. 39 F.3d 191,
193-94 (8th Cir. 1994). In determining whether the state tort claims were preempted, the
federal appellate court asked whether the a ctivities complained of occurred within the
context of a “labor dispute.” Id. at 194. The plaintiff argued that there was no “labor
dispute” because the labor union had ceased organ izational efforts. Id. The federa l
appellate court dismissed that argument, noting that c ourts “have routinely found that a
labor dispute exists in situations which do not involve any organizing activities by a union,”
and “[a] union picketing or boycotting a business which it has not tried to organize (and in
some cases cann ot organize) nevertheless involves a labor dispute.” Id. at 194 -95
(quotation omitted). The federal appellate court further noted, “[t] he definition of labor
dispute under the NLRA is very broad and rarely have courts found concerted union
activities to fall outside this broad definition.” Id. at 195 (quotation omitted). “Where the
union acts for some arguably job -related reason and not out of pure s ocial or political
concerns, a ‘labor dispute’ exists.” Id.
This court is bound by decisions of the Mi nnesota Supreme Court and the United
States Supreme Court. Citizens for a Balanced City v. Plymouth Congregational Church ,
672 N.W.2d 13, 20 (Minn. App. 2003). We are not bound by any other federal court ’s
opinion, even when interpreting federal statutes. Id. We therefore are not required to adopt
the reasoning of the federal appellate court in Beverly Hills.
Moreover, we do not find the reasoning of Beverly Hills persuasive. In that case,
the federal appellate court relied on Old Dominion to support the proposition that union
activity during a labor dis pute is grounds for preemption. 39 F.3d at 1 94. The Supreme

16
Court’s finding of preemption in Old Dominion was based on a labor union’s organizing
efforts. 418 U.S. at 266-69, 279, 94 S. Ct. at 2772-74, 2779. The Supreme Court noted
that “what constitutes a ‘labor dispute’ ” is not determinative, but rather, whether
defamation “is made in a context where the policies of the federal labor laws leading to
protection for freedom of speech are significantly implicated.” Id. at 279, 94 S. Ct. at 2778.
The Court noted that the “primary source” for NLRA protection of union speech is section
7, and ultimately concluded “any publication made during the course of union organizing
efforts, which is a rguably relevant to that organizational activity, is entitled to the
protection.” Id. at 277, 279, 94 S. Ct. at 2777-79 (emphasis added). Here, the undeveloped
record does not indicate that appellants’ conduct occurred during the course of union -
organizing efforts.
Appellants’ attempt to invoke Garmon preemption based on the alleged existence
of a labor dispute without articulating how their conduct is either protected or prohibited
under the NLRA is inconsistent with Minnesota precedent. The Minnesota Supreme Court
has consistently identified an arguably applicable section of the NLRA or a recognized
right under the NLRA when considering whether Garmon preemption applies. For
example, in Midwest Pipe , the supreme court determined that the relevant conduct fell
“squarely under the prohibitions outlined in section 8 .” 771 N.W.2d at 32. In Midwest
Motor, the supreme court identi fied the question presented as whether the conduct
constituted “an unfair labor practice withi n section 8(1) of the NLRA .” 512 N.W.2d at
884; see also Wright Elec., Inc. v. Ouellette , 686 N.W.2d 313, 318 (Minn. App. 2 004)
(recognizing that the “ NLRA protects the right of unions and union members to ‘salt’

17
unorganized workplaces by seeking employme nt with non -union employers in order to
engage in union organizing”), review denied (Minn. Dec. 14, 2004); Robillard v. Local 10
Sheet Metal Workers’ Int’l Ass’ n, 353 N.W.2d 248, 250 (Minn. App. 1984) (involving
arguable union violation of section 8(b)(2)).
In sum, appellants have the burden to make an “affirmative showing that [their]
activity is arguably subject to the [NLRA].” Davis, 476 U.S. at 399, 106 S. Ct. at 1916 -
17. Precedential authority requires appellants to identify an arguably applicable provision
of section 7 or section 8 to meet their burden. Appellants’ attempt to instead rely on the
alleged existence of a labor dispute is inadequate.
Conclusion
Because appellants do not identify a provision within section 7 or section 8 of the
NLRA that arguably protects or prohibits their public dissemination of statements
regarding Madison’s alleged wage theft, appellants have not persuaded us that Madison’s
state-law tort claims are preempted under Garmon. As the district court noted, a more fully
developed record might support a different conclusion. This opinion should not be read to
foreclose reconsideration of the issue by the district court once the record is developed .
But the issue cannot be resolved in appellants’ favor based on the pleadings. We therefore
affirm the district court’s order denying judgment on the pleadings and remand for further
proceedings.
Affirmed.