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

The U.S. Supreme Court heard oral arguments yesterday in the matter of Glacier Northwest, Inc. v. International Brotherhood of Teamsters, a case involving NLRA preemption, the background and implications of which have been covered extensively on this blog. Yesterday’s argument, lasting an hour and a half, was dominated by the liberal block of the Court—Justices Alito and Kavanaugh were entirely silent, while Gorsuch and Thomas asked only a few questions each.

The company contended that the intentional destruction of an employer’s property in the course of a labor dispute does not constitute protected concerted activity under § 7 of the NLRA and in such a case a state court, rather than the NLRB, should be the entity to determine whether the factual allegations of intentional property destruction set forth in the complaint are true. This approach would authorize a state court to independently conclude, without any prior Board determination, whether certain concerted activity is arguably protected by the Act. “[I]f the complaint alleges clearly unprotected conduct and the only issue is whether those allegations are true,” declared Noel Francisco, formerly the U.S. Solicitor General under the Trump Administration and currently a partner at the union-busting firm Jones Day, on behalf of Glacier, “the state court gets first crack at resolving the facts.” The innovation of Garmon, according to Francisco, is that itobliges a state court adjudicating a tort claim arising out of concerted activity to dismiss the complaint not only in the face of an actual conflict with federal law but in the face of arguable conflict with federal law, meaning that, as Francisco explains, “state courts still get to adjudicate the claim and they grant a preemption defense once it becomes clear that on the facts alleged or the facts proved, there’s either an arguable conflict or an actual conflict with the NLRA.”

Put differently, the company’s position, which it describes as “an application of Garmon in the context of ordinary preemption principles,” is that a state court, as distinguished from the Board, is the institution permitted to make the initial threshold determination of whether the facts alleged in the complaint arguably conflict with federal labor law. If the court determines that the complaint alleges conduct that is not even arguably protected by the Act, then it proceeds to adjudicate the merits of the case. Garmon, company contends, designates the Board as the entity to decide whether certain conduct determined to be arguably protected by a state court is actually protected by federal labor law, but if the court determines in the first instance that the conduct is not arguably protected, then it may adjudicate the merits of the action without a prerequisite of any Board finding that the facts do not arguably conflict with the NLRA, even if a related proceeding is concurrently pending before the Board.

The Biden Administration, which filed a brief “as amicus curiae supporting neither party,” observed that affirmative actions to destroy property, such as grocery store employees “pouring milk down the drain,” are unprotected by the Act, but urged that such conduct must be distinguished from “the sort of routine consequence that attends any strike” which includes “the mere spoilage of a perishable product after people walk off from the job.” Consistent with precedent, insisted the Biden Administration, threshold factual issues should be resolved by the Board, not a state court.

Arguing on behalf of the union, Darin Dalmat, a partner at the labor-side firm Barnard Iglitzin & Lavitt, conceded that under settled caselaw strikers lose their § 7 protection if they fail to take reasonable precautions to avoid aggravated, imminent, or foreseeable harm to employer property, but insisted that harm to perishables has never been sufficient to constitute aggravated harm. Moreover, Dalmat proceeded, the evidence in the record reveals that the striking employees took reasonable precautions, which means their walkout was at least arguably protected and, consistent with the principles of Garmon preemption, state courts may not exercise jurisdiction over the dispute. With respect to the scope ofNLRA preemption, the union insisted that Garmon dictates that jurisdiction over the initial determination of whether certain labor activity is arguably protected by the Act resides with the Board, the entity which Congress designated to adjudicate labor disputes.

In other news, workers at Apple’s first unionized store reportedly began collectively bargaining with company management earlier today. Employees at the store, located in Towson, Maryland, near Baltimore, voted to unionize last summer, which Swap detailed at the time, becoming the first of the tech giant’s locations to form a union. Organizers at the store claim that their priorities include securing higher pay, better working conditions, and a greater measure of voice in the workplace. An Apple spokesperson announced in a statement that the company “will engage with the union representing our team in Towson respectfully and in good faith.”