In today’s news and commentary, the Supreme Court hears oral arguments in the Glacier case and Apple’s first unionized employees begin bargaining.

The U.S. Supreme Court heard oral arguments yesterday in the Glacier Northwest litigation involving strike activity and NLRA preemption, the background and implications of which have previously been covered extensively on this blog. The argument, spanning about an hour and a half, was largely dominated by the Court’s liberal Justices; Alito and Kavanaugh were entirely silent, while Gorsuch and Thomas offered only a few questions each.

Glacier’s central contention was that a state court, not the federal labor board, should be the institution responsible for deciding whether the facts alleged in the complaint implicate the protections of federal labor law. “[I]f the complaint alleges clearly unprotected conduct and the only issue is whether those allegations are true,” reasoned Glacier’s counsel, “the state court gets first crack at resolving the facts.” If the state judge determines that the conduct on which the complaint is predicated falls outside the scope of the NLRA, it is entitled to adjudicate the merits of the action, even if a related proceeding is concurrently pending before the Board. In contrast, if the judge determines that the activity is within the Act’s protective ambit, Garmon preemption dictates that the Board must decide whether the conduct is actually protected.

The Biden administration, which filed an amicus brief “supporting neither party,” articulated a compromise position. It argued that strike activities intentionally destroying an employer’s property are unprotected, but such conduct is distinguishable from “the sort of routine consequence that attends any strike,” which remain privileged. The latter include, for instance, “the mere spoilage of a perishable product after people walk off from the job.” In addition, the administration asserted that pursuant to precedent, threshold factual issues must be resolved by the Board, not a state court.

Arguing on behalf of the Respondent, a Teamsters local, the labor-side firm Barnard Iglitzin & Lavitt, conceded that settled caselaw dictates that strikers lose their statutory protection if they fail to adopt reasonable precautions to avoid aggravated or foreseeable harm to employer property. But, the Respondent asserted, damage to perishables has never been considered sufficient under this standard. Moreover, the union contended that Garmon counsels that jurisdiction over the threshold determination of whether a given activity is arguably subject to the Act should be vested in the Board, the entity which Congress charged with adjusting labor disputes.

The Court is expected to issue its ruling sometime this summer.

In other news, employees at Apple’s first unionized store began collectively bargaining with management earlier today. The shop, located near Baltimore, voted to unionize last summer, as Swap detailed at the time, becoming the first of the tech giant’s many U.S. locations to do so.