The labor movement is surging. After the COVID-19 pandemic, workers increasingly engage in collective action to improve their working conditions. However, the resistance to organizing campaigns from companies like Starbucks, Amazon, and Apple is also high. The question is not whether the most business-friendly Supreme Court in history will help employers but to what degree.
The most recent example of the Court hindering the labor movement is last week’s decision in Glacier Northwest v. Teamsters Local 174. On the surface, the opinion skates the nerdy surface of labor preemption and the alleged misdeeds of a union on strike. Its real target is a favorite of conservative judges—the administrative state, particularly the National Labor Relations Board.
The case originated in Washington State in 2017 when members of Teamsters Local 174 took to the picket line against Glacier Northwest, a building supplier, after negotiations broke down over wages, hours, and working conditions.
According to the employer’s complaint, union workers intentionally filled their trucks with wet concrete with a plan to walk off the job, leaving it to harden and become worthless, breaking equipment such as cement mixer trucks. Although they lost the concrete out for delivery before the strike, the employer managed to fill the orders and prevent damage to their equipment.
While the union’s intentions may not be genteel (if the allegations are deemed true), the move would maximize negotiating leverage, which is what unions do during strikes. That does not necessarily mean that, under federal law, the strike will be protected by the National Labor Relations Act, which was the primary issue before the Court. But in this case, the Washington State Supreme Court, applying federal law, ruled for the union: Glacier Northwest’s “loss was incidental to a strike arguably protected by federal law,” the judges reasoned from their aptly named Temple of Justice in the state’s capital, Olympia.
Before seeing why Glacier Northwest is such a departure from the traditional federal-state division of power in labor law, it’s necessary to get a little nerdy about preemption and why the words “arguably protected” are so important. First, federal law and state law generally coexist unless there is some reason to think that Congress wanted federal law to dictate how state laws or courts operate. Congress can do that explicitly or implicitly, but the Supreme Court has reaffirmed it in the labor realm for decades. A worker fired for organizing a union, for example, must seek redress at the National Labor Relations Board.
There are good reasons for federal primacy when it comes to labor relations. One of Congress’s aims when passing New Deal labor legislation was to correct for decades of federal and state court judges enjoining peaceful labor disputes. Various types of federal preemption came from this goal, like the one resting exclusive jurisdiction in the NLRB for matters that are “arguably subject” to or arguably prohibited by federal labor law. The phrase appears in a 1959 decision called San Diego Building Trades Council v. Garmon, and the concept is shorthanded as “Garmon preemption.”
Because of federal preemption, most labor disputes, even those which can be heard in state courts, follow federal labor law. The Supreme Court has applied federal law to labor disputes in cases ranging from everything from a review of arbitration awards to state defamation claims.
The Garmon rule, and other preemption doctrines, are two-way streets. Sometimes they prevent states from issuing regulations that labor unions and employees might prefer—such as statutes that prevent the state from discouraging union activity. Or a union may want to sue an employer in state court for outrageous conduct during an organizing campaign to deter still worse behavior. Either way, whether it strengthens or weakens unions, these are matters for federal law.
So how did the Glacier Northwest strike end up in the Supreme Court? At issue is the meaning of the phrase “arguably protected.” One might think the word “arguably” would make that standard quite broad. But writing for the Court’s conservative majority, Justice Amy Coney Barrett places undue focus on the word “protected.” She also tries to conclude whether this conduct should be protected instead of deferring to the NLRB. Not surprisingly, there are NLRB cases that deny protection for strikes that are “arguably” worse than what happened here, such as security guards leaving federal buildings unprotected. The point of the Garmon doctrine is to allow the board to determine what is protected, not jurists who want to impose their judgment.
As Justice Ketanji Brown Jackson pointed out in her dissent, it is possible the board might find the employees’ conduct in Glacier Northwest would be protected. In fact, the NLRB issued a complaint and a notice for a hearing against the contractor, alleging that their firing of the employees was an unfair labor practice.
The Court’s decision sends the parties back to state court to adjudicate Glacier Northwest’s tort claims against the Teamsters local. Such tort claims against unions are common; employers often use them—or the threat of them—to extract concessions from workers. Glacier Northwest might even embolden employers to use tort claims to avoid bargaining in the first place.
Fortunately, the Court did not overrule the Garmon preemption doctrine. But dark clouds shadow the opinion, particularly those left by Justice Samuel Alito and Justice Clarence Thomas in their concurrence. They clearly want to get rid of Garmon preemption entirely. What effect would killing it have? It would undoubtedly lead to the kind of satellite litigation we saw in the Glacier Northwest case. There were many other reasons to affirm the Washington Supreme Court’s decision in this case. (I was proud to join an amicus brief in the case.) Nonetheless, eight justices voted to reverse the decision and return the case to trial court.
Ultimately, it fell to the newest justice to articulate a vigorous defense of the Garmon preemption doctrine and its intellectual foundation—the administrative state. “[C]onsistent with a statutory scheme that gives primacy to the [NLRB’s] expertise, a court’s task under Garmon is unmistakably modest,” wrote Jackson in her solo dissenting opinion. Misapplying Garmon preemption “threatens to both impede the Board’s uniform development of labor law and erode the right to strike,” her dissent warned.
In its nearly two decades, the Supreme Court under Chief Justice John Roberts has yet to rule in favor of a union when it was a party (see also Knox, Friedrichs, and Janus). But Glacier Northwest was also part of a larger attack on the New Deal and the administrative state, as we’ve seen in environmental cases where a conservative majority has curtailed the long-established regulatory functions of the EPA. The decision shows that the Roberts Court will continue to invite cases that weaken the NLRB and the labor movement.
