Under the long-standing doctrine of primary jurisdiction, courts temporarily abstain from resolving certain issues that an agency, entrusted by Congress to decide the question in the first instance, has yet to address.1 In San Diego Building Trades Council v. Garmon,2 the Supreme Court clarified the National Labor Relations Board’s primary jurisdiction to decide labor disputes,3 holding that “state jurisdiction must yield” to the Board when conduct that the state appears to regulate “is arguably subject to § 7 or § 8” of the National Labor Relations Act4 (NLRA).5 Last Term, in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174,6 the Supreme Court held that Garmon did not strip Washington courts of jurisdiction over Glacier’s tort claims for concrete lost during a strike. The Court concluded that, according to the facts alleged in Glacier’s complaint, the strike was clearly unprotected under section 7 because the Union failed to take reasonable precautions to protect Glacier’s equipment.7 Although the majority’s deeply fact-specific decision left Garmon intact, it called the doctrine “unusual,”8 and two concurring Justices propounded its reconsideration.9 Glacier thus left the sixty-four-year-old doctrine with an uncertain future. But, rather than being overruled, Garmon should be justified as the combined application of two well-established doctrines: conflict preemption and primary jurisdiction.
Glacier Northwest, Inc. sells concrete in Washington.10 It is able to do so through the work of its truck drivers, who are represented in King County by Teamsters Union Local 174.11 On July 22, 2017, amidst negotiations over a new collective bargaining agreement, Glacier’s drivers authorized a strike.12 Although Glacier was aware that its drivers had voted to strike, the company did little to prepare.13 Then, in the early morning of August 11, still with no contract in hand, Glacier’s truck drivers stopped working.14 Drivers returned their trucks to their respective storage yards, asked for directions about what to do with the concrete, and complied with managers’ instructions.15 No trucks were damaged.16 After Glacier disciplined several “of its employees . . . for leaving their trucks” during the strike,17 the Union filed an unfair labor practice (ULP) charge with the Board against Glacier for unlawfully retaliating against drivers who participated in the strike.18
On December 4, 2017, Glacier filed several tort claims against the Union in King County Superior Court in Washington, alleging that the Union and its members deliberately destroyed Glacier’s concrete and failed to take reasonable precautions to avoid damage to Glacier’s trucks,19 claiming that nine drivers “abandoned their trucks with no notice.”20 The trial court dismissed Glacier’s property-damage claims as preempted under Garmon.21 The Washington Court of Appeals reversed the dismissal,22 noting the Board’s clear precedent that “workers who fail to take reasonable precautions to prevent the destruction of an employer’s plant, equipment, or products before engaging in a work stoppage” fall outside of the Act’s protections.23 Thus, given Glacier’s allegations, including that the Union and its members “consciously acted together . . . to sabotage, ruin and destroy Glacier’s batched concrete,” the Court of Appeals concluded that Glacier had pleaded a claim alleging conduct that was not arguably protected by the NLRA.24 The Washington Supreme Court reversed again,25 noting that the Board traditionally balanced its “reasonable precautions” principle against another principle: that “economic harm may be inflicted through a strike as a legitimate bargaining tactic.”26 And the Board could plausibly find the drivers’ actions protected on the basis that “the concrete loss was incidental damage given the perishable nature of the concrete.”27 The strike was therefore “at least arguably protected” by the NLRA.28
Meanwhile, the Board’s local Regional Director concluded his investigation and issued a Board complaint against Glacier on behalf of the General Counsel’s office.29 An administrative law judge (ALJ) concluded that the complaint “now independently establishes that the truck drivers’ conduct was at least arguably protected” under Garmon.30
Less than a week after the parties submitted their post-hearing briefs to the ALJ,31 the United States Supreme Court reversed the Washington Supreme Court’s decision,32 concluding that the latter “erred in dismissing Glacier’s tort claims as preempted on the pleadings.”33 Writing for the Court, Justice Barrett34 explained that under Garmon, Glacier’s tort claims would be preempted only if the Union had presented “‘enough evidence to enable the court to find that’ the NLRA arguably pro-tects the drivers’ conduct.”35 But, based on the facts alleged in Glacier’s complaint, the Union could not make such a showing.36
To show that the work stoppage was protected under the Board’s undisputed standard, the Union had to demonstrate that it had taken “‘reasonable precautions’ to protect [Glacier]’s property from foreseeable, aggravated, and imminent danger” caused by the strike.37 But Glacier alleged that nine drivers “abandoned their fully loaded trucks without telling anyone,” that the Union failed to “direct its drivers to follow Glacier’s instructions to facilitate a safe transfer of equipment,” and that “the Union executed the strike in a manner designed to compromise the safety of Glacier’s trucks and destroy its concrete” — all notwithstanding the Union’s knowledge of the potential consequences for Glacier’s trucks and concrete arising from these decisions.38 Thus, “accepting the complaint’s allegations as true,” the Union’s conduct was not arguably protected by the Act.39
Justice Barrett distinguished the work stoppage alleged in Glacier’s complaint from those simply involving the spoilage of perishable products, which the Board has routinely found protected.40 “[B]y reporting for duty and pretending as if they would deliver the concrete, the drivers prompted the creation of the perishable product.”41 Justice Barrett also conceded that the strike was not unprotected by mere virtue of its timing, or because of the Union’s failure to give Glacier notice of the strike, but stated that these were nonetheless “relevant considerations.”42 Finally, Justice Barrett declined to address “the significance, if any, of the Board’s complaint with respect to Garmon preemption” given that the courts below had not yet had a chance to address it.43
Justice Alito, joined by Justices Thomas and Gorsuch, concurred in the judgment.44 For Justice Alito, “[n]othing more [was] needed to resolve this case”45 than to recognize that “Garmon preemption does not prevent States from imposing liability on employees who intentionally destroy their employer’s property,”46 as alleged in Glacier’s complaint.47 Justice Alito also questioned the theory that the Board’s complaint should per se result in Garmon preemption,48 writing that “[i]f the state courts on remand dismiss this case on that ground, the decision . . . would be a good candidate for a quick return trip” to the Supreme Court.49
Justice Thomas also filed a separate concurrence, joined by Justice Gorsuch.50 His opinion “emphasize[d] the oddity of Garmon’s broad pre-emption regime”51 and suggested that in an appropriate case, Garmon should be reconsidered — noting “that any proper pre-emption inquiry must focus on the NLRA’s text and ask whether federal law and state law ‘are in logical contradiction.’”52
Justice Jackson dissented.53 She began with a reminder that “[t]he right to strike is fundamental to American labor law” and “enshrined” in the NLRA.54 And, to define the contours of such a right, Congress specifically entrusted the Board as “an agency with specialized expertise” to “develop and enforce national labor law in a uniform manner, through case-by-case adjudication.”55 Following from this premise, Justice Jackson noted that the Board’s complaint “represents the General Counsel’s conclusion — reached after an extensive independent investigation . . . — that the Union’s claim that its strike was protected ‘appears to have merit.’”56 “A court presented with a General Counsel complaint should therefore find Garmon inherently satisfied,”57 and “all courts — including this one — should stand down.”58
Justice Jackson also questioned the majority’s application of Board precedents to the alleged facts.59 For drivers at a concrete company responsible for delivering concrete, “it is unremarkable” — and definitely not a sign of “aggravated or even untoward” conduct — “that [they] struck at a time when there was concrete in the trucks.”60 In contending otherwise, “Glacier seeks . . . to shift the duty of protecting an employer’s property from damage or loss incident to a strike onto the striking workers.”61 But, Justice Jackson proclaimed, “[w]orkers are not indentured servants, bound to continue laboring until any planned work stoppage would be as painless as possible for their master. They are employees whose collective and peaceful decision to withhold their labor is protected by the NLRA even if economic injury results.”62
Glacier narrowly held that “[t]he state court . . . erred in dismissing Glacier’s tort claims as preempted” based on the particular facts alleged in Glacier’s complaint.63 Yet, by framing Garmon as unusual without investigating its origins, Glacier leaves Garmon on shaky ground.64 In fact, Garmon is no more than an ordinary application of two doctrines: primary jurisdiction and preemption. By combining them into one formulation, Garmon may be unusual in form — but is not in substance.
The primary jurisdiction doctrine emanates from the Court’s 1907 decision in Texas & Pacific Railway Co. v. Abilene Cotton Oil Co.65 The Interstate Commerce Act of 188766 (ICA) required common carriers to establish “just and reasonable” rates and to file them with the Interstate Commerce Commission.67 If the Commission determined that a carrier’s rates were unreasonable, it could supplant them with its own maximum rates.68 A shipper filed a common law suit for damages against a carrier, alleging that the carrier “coercively collected . . . freight charges in excess of a reasonable” rate from the shipper.69 But because the Commission had not determined that the rate in question was unreasonable, Abilene held that courts must abstain from the suit.70
To be sure, the ICA did not abrogate the common law remedy — but in deciding whether to grant that remedy, the court needed to first know whether the rate was reasonable.71 And the ICA “endowed” the Commission alone “with plenary administrative power” to investigate carriers and determine the reasonableness of their rates.72 Otherwise, “a uniform standard of rates . . . would be impossible.”73 And as later cases noted, affording an agency primary jurisdiction capitalizes on the agency’s “expert and specialized knowledge.”74
Thus, in enacting the ICA, Congress created a logical order of decisionmaking authority over disputes arising under the Act: The agency first decides the disputed question. Then, courts step in. Courts can therefore entertain a suit only if there is no disputed ICA issue — either because the agency has already decided the rate’s reasonableness, or because it could not even arguably find that the rate was reasonable.75
The same is true under the NLRA. The Court first applied the principles of primary jurisdiction to federal labor law in Garner v. Teamsters Local Union No. 776.76 Garner invoked Abilene,77 analogizing the NLRA’s enforcement of legal rights through the administrative process to that of the ICA,78 and held that Congress “confide[d] primary interpretation and application of [the NLRA’s] rules to a . . . specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order.”79 Reasoning from these textually entrenched procedures,80 Garner concluded: “Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules.”81 Subsequently, in Weber v. Anheuser-Busch, Inc.,82 the Court held that where conduct “may be reasonably deemed to come within the protection afforded by” the NLRA, “the state court must decline jurisdiction in deference to the tribunal which Congress has selected for determining such issues in the first instance.”83
When the Supreme Court decided Garmon, it again emphasized the usual primary jurisdiction rationales — uniformity of federal law84 and agency expertise85 — and quoted at length from both Garner86 and Weber.87 It then clarified the relationship between courts and the NLRB arising from those decisions: because it is the Board, not the courts, that Congress has designated as the “primary tribunal to adjudicate” whether certain activity is protected or prohibited by section 7 or 8 of the NLRA,88 state courts lack jurisdiction over activity that is even “arguably within the compass of” those provisions.89
Despite Garmon’s genesis in the doctrine of primary jurisdiction, the relationship between the two has become an enigma. In his concurrence in Glacier, Justice Thomas quoted from a footnote in Sears, Roebuck & Co. v. San Diego County District Council of Carpenters90 to emphasize Garmon’s unusualness.91 The Sears Court wrote that “[w]hile the considerations underlying Garmon are similar to those underlying the primary-jurisdiction doctrine,” Garmon is different insofar as it “completely pre-empts state court jurisdiction unless the Board determines that the disputed conduct is neither protected nor prohibited.”92 In other words, unlike with the rate-setting cases, “jurisdiction does not return to the referring court after the issue has been litigated” by the agency.93
But the Sears footnote misleads. Consider how Garmon works. First, when a court is presented with a disputed question of whether conduct is covered by the NLRA, the court must yield primary jurisdiction over the dispute to the Board, just as in the rate-setting cases.94 This flows from the text of the statute, which only provides for the initial adjudication of ULP disputes by the Board95 — not by any court — and from Congress’s intent to create a uniform national labor policy.96
After the court has yielded its jurisdiction, two things can happen. If the Board determines that the disputed activity is not covered by the Act, there is no preemption and state courts are free to resume jurisdiction — once again, just like any other application of primary jurisdiction doctrine.97 If the Board determines that the activity is protected or prohibited, that determination becomes an authoritative interpretation of federal law, and state courts are ousted of jurisdiction under ordinary principles of conflict preemption: if the NLRA protects a certain right, it would create a “logical contradiction” for state law to attach liability to the exercise of said right.98
Whichever way the Board decides, the NLRA provides that “[a]ny person aggrieved by a final order of the Board” can petition a court of appeals for review of the Board’s determination.99 Thus, courts initially lack jurisdiction over conduct within the “penumbra” of the Board’s “carefully insulated common law of labor relations,” as Justice Thomas described it.100 But once the Board makes its “preliminary, comprehensive investigation of all the facts, analyzes them, and applies to them the statutory scheme as it is construed,”101 just as in other primary jurisdiction cases,102 courts are revested with jurisdiction to review the Board’s decision — maintaining their “ultimate interpretative authority ‘to say what the law is.’”103 The only difference is that the NLRA textually commits exclusive review of Board decisions to the federal court of appeals104 — not to the state or federal court that initially heard the case.
Thus, what is unusual about Garmon is not that it treats NLRA preemption differently, but that it takes both primary jurisdiction and preemption, as dictated by the text of the NLRA and the Supremacy Clause of the United States, and combines them into one formulation.
And the stakes of preserving the Board’s primary jurisdiction are high. Without Garmon, Washington courts on remand could attach liability to the Union’s work stoppage before the Board finds that the strike was protected. If the Board’s judgment is enforced by a court of appeals, what are courts to do? They will either have to develop complex doctrines about the retroactive invalidation of state court remedies, or else allow state courts to completely nullify the protections afforded by federal labor law.105 Neither consequence flows from Congress.
Finally, in addition to justifying Garmon’s preservation, understanding the doctrine’s roots in primary jurisdiction helps answer what comes next. As Glacier made clear, when a state court is adjudicating a state tort law claim in the absence of a General Counsel complaint, it cannot dismiss the claim under Garmon unless the party asserting preemption has “put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on [its] interpretation.”106 But where the General Counsel has found that the employer disciplined workers for protected conduct — with the benefit of a board investigation, rather than just the facts alleged by one party’s state court complaint107 — there can be no doubt that the union’s conduct is at least arguably protected.108 If Washington courts properly defer the matter to the Board on this basis, Justices Alito, Thomas, and Gorsuch might be looking for a fourth vote for Glacier’s “quick return trip” to the Supreme Court.109 If they find that vote, the Court should affirm. In so doing, the Court would be wise to clarify how Garmon is not so strange after all, fitting neatly into the doctrine of primary jurisdiction.110