Last Thursday, the Supreme Court ruled in Glacier Northwest, Inc. v. International Brotherhood of Teamsters that the Washington supreme court wrongly concluded that the National Labor Relations Act prevented a concrete company, Glacier Northwest, from pursuing its state-law tort claims against a union for destroying its property. The Court’s bottom-line ruling was by a vote of 8 to 1. Justice Amy Coney Barrett wrote the majority opinion for five justices. Justice Thomas, joined by Justice Gorsuch, wrote an opinion concurring in the judgment, as did Justice Alito, joined by Thomas and Gorsuch. Justice Jackson issued a solo dissent, which at 27 pages was more than double the length of the majority opinion.
The legal issue in the case was whether the doctrine of “Garmon preemption” applied to Glacier Northwest’s state-law tort claims. Under that doctrine, states cannot regulate conduct that the National Labor Relations Act “arguably protects or prohibits.” So if the conduct underlying the union’s alleged destruction of Glacier Northwest’s property was “arguably” protected by the NLRA, Glacier Northwest could not pursue its state-law tort claims — at least not unless and until the National Labor Relations Board determined that the conduct was not actually protected by the NLRA. The eight justices in the majority determined that Garmon preemption did not apply.
Just a few observations on Justice Jackson’s dissent:
1. As the majority notes in its footnote 3, after the Washington supreme court issued its ruling affirming the dismissal of Glacier Northwest’s tort claims, the general counsel of the National Labor Relations Board filed a complaint with the NLRB that alleged that Glacier Northwest had engaged in unfair labor practices in connection with the labor dispute that gave rise to those tort claims. The majority declines to address “the significance, if any,” of that complaint to the issue of Garmon preemption, and it further notes that the NLRB general counsel “agrees that this issue is not properly before us.”
Jackson, however, does not accept that the significance of the NLRB general counsel’s complaint was not properly before the Court. Ironically, in a dissent that would accord extraordinary deference to the views of the NLRB general counsel, she—without a word of explanation—disregards the general counsel’s position on this threshold question.
2. Jackson does not dispute that the majority states the proper test for Garmon preemption. Indeed, she recites that same test:
To determine whether conduct is “arguably protected,” a state court examines the showing of the party invoking Garmon and seeking to pause the litigation. The court asks whether that party has (1) “advance[d] an interpretation of the [NLRA] that is not plainly contrary to its language and that has not been ‘authoritatively rejected’ by the courts or the Board,” and (2) “put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation.”
But she maintains that the filing of a complaint by the NLRB general counsel should be deemed to have automatically satisfied this test. If I’m understanding her position properly, the actual components of the test she has articulated don’t matter. Rather, on the broader question whether conduct is “arguably protected,” the “logical implication of a General Counsel complaint under Garmon is that the union’s conduct is at least arguably protected by the NLRA.” (Emphasis in original.) Evidently we are supposed to accept that the NLRB general counsel—or in this case “the regional director acting on behalf of the Board’s General Counsel”—conducted “an extensive independent investigation involving collecting testimony and other evidence, and after careful consideration of the competing legal principles and policy concerns” determined that “the Union’s claim that its strike conduct was protected ‘appears to have merit.’”
Jackson’s faith in the impartiality of the NLRB general counsel—an official who, like other medium-to-high-level political appointees is “presidentially appointed and Senate confirmed”—is touching. Unfortunately for Jackson, the competing opinions in Glacier Northwest were issued just two days after the NLRB general counsel, at the bidding of the Biden administration, issued an opinion concluding that, lo and behold, non-compete agreements have generally been unlawful for the past 90 years.
If the NLRB general counsel’s say-so were enough to trigger Garmon preemption, you can be sure that the selection of that legal officer would become subject to even more political pressure.
3. Jackson treats it as open to the state courts on remand to determine that the NLRB general counsel’s complaint triggers Garmon preemption of Glacier Northwest’s tort claims. But the Court has already determined that the union’s alleged conduct is not “arguably” protected by the NLRA and that Glacier Northwest’s tort claims are therefore not subject to Garmon preemption. The fact that the majority observed that the “significance, if any,” of the NLRB general counsel’s complaint was “not properly before” the Court does not imply that the issue of Garmon preemption somehow can be revisited on remand.
As Justice Alito states in his separate opinion, if a state court were to take up Jackson’s suggestion and “dismiss this case on that ground, the decision, in my judgment, would be a good candidate for a quick return trip here.”