The Supreme Court heard oral arguments yesterday in Glacier Northwest, a case dealing with strike activity, tort liability, and labor law preemption. Its background and implications have been covered extensively on this blog. At oral argument the company’s core contention was that a state court — not the federal labor board — is the proper tribunal to determine, in the first instance, whether the facts alleged in a tort 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,” the company argued, “the state court gets first crack at resolving the facts.” And where the judge finds that the alleged conduct does not implicate the NLRA’s protections, company counsel continued, he is permitted to adjudicate the merits — even if a charge stemming from the same underlying facts pends before the Board. But, on the company’s theory, where he finds that it does, Garmon activates and channels the dispute to the Board, which must then decide whether the conduct is entitled to statutory protection.

The Biden administration filed an amicus brief in support of “neither party.” At oral argument it sought to offer the justices an offramp. On the threshold issue, the SG argued that the question of whether factual allegations implicate the Act’s provisions must be resolved by the Board, not a state court. And on the substantive question, the administration conceded that strike activities resulting in the intentional destruction of an employer’s property should not be entitled to Section 7 protection. But it sought to distinguish such conduct from “the sort of routine consequence” attending any strike, such as “the mere spoilage of a perishable product after people walk off from the job.”

Appearing on behalf of the union, a Teamsters local in Seattle, attorneys from the firm Barnard Iglitzin & Lavitt fiercely contended that Garmon dictates that jurisdiction over the threshold determination of whether a disputed activity arguably falls under the Act’s protective ambit rests with the Board, the entity Congress entrusted to adjudicate labor disputes. On the substantive issue, the union recognized that the Supreme Court’s jurisprudence strips protection from strikers who neglect to adopt reasonable precautions so as to avoid aggravated or foreseeable harm to employer property, but insisted that the damage to perishables at issue here has never been found sufficient to meet this standard.

The Court is expected to issue a decision this summer.

And briefly, in organizing news, negotiations began today at Apple’s first unionized store, near Baltimore. The retail shop voted to unionize last summer, as Swap covered at the time.