The Supreme Court heard oral arguments yesterday in Glacier Northwest, a case involving 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 federal labor law’s protections.  “[I]f the complaint alleges clearly unprotected conduct and the only issue is whether those allegations are true,” the company asserted, “the state court gets first crack at resolving the facts.”  Where the judge finds that the alleged conduct does not implicate the NLRA’s protections, the company’s counsel continued, he may adjudicate the merits even if a charge stemming from the same facts is pending before the Board.  And where he finds that it does, on the company’s theory, Garmon activates to channel the dispute to the Board, which  must decide whether the conduct is actually entitled to statutory protection.

The Biden administration, which filed an amicus brief in support of “neither party,” offered 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.  On the substantive question, the administration conceded that strike activities which result in the intentional destruction of an employer’s property should not entitled to Section 7 protection but sought to distinguish such conduct from “the sort of routine consequence” attendant to 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 labor-side firm Barnard Iglitzin & Lavitt vigorously contended that Garmon requires that jurisdiction over the threshold determination of whether a disputed activity arguably falls within the Act’s ambit rests with the Board, the entity Congress created and entrusted to adjudicate labor disputes.  On the substantive issue, the union recognized that the caselaw 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 in this case has never been found sufficient to meet this exacting standard.  

The Court is expected to issue its decision this summer.

In organizing news, collective bargaining negotiations began today at Apple’s first unionized store, located near Baltimore.  The shop voted to unionize last summer, as Swap covered at the time.