Nowadays, labor-law cases are a rare sight at the Supreme Court. The Court usually takes them only when they intersect with other fields, such as arbitration or the First Amendment. And at first glance, the Court’s latest effort seemed a bit of a dud. In Glacier Northwest, Inc. v. International Brotherhood of Teamsters, the Court applied well-worn doctrine to find that federal law does not preempt certain state-law tort claims. That was the right result and, in truth, not all that interesting. More interesting, however, was the principal concurrence. Written by Justices Thomas and Gorsuch, the concurrence suggested that labor-preemption doctrine cedes too much authority to administrative agencies. And if that view catches on, the Court could soon find itself wading back into the labor-law field¾this time, in a more consequential case.

To understand the debate, we need some background. The main federal labor statute, the National Labor Relations Act, says nothing about preemption. Yet courts have given the Act broad preemptive effect anyway. They’ve reasoned that when Congress passed the Act, it was trying to nationalize labor policy. It wanted one set of rules to govern all labor disputes. So it created a single administrative body, the National Labor Relations Board, to make those rules up. And to make sure the Board’s rules were followed, it implicitly preempted most state law in the labor field.

Or at least, that’s what courts have inferred from the statute. And they’ve carried that inference quite far. In the leading case, San Diego Building Trades Council v. Garmon, the Supreme Court held that the Act blocks state courts from regulating any conduct “arguably” protected by federal labor law. And generally, whether something is arguably protected is a decision for the Board. State courts can’t make that decision for themselves; they have to wait for the Board to weigh in.

In Glacier, the question was how far that principle goes. The case involved a company that produced ready-made concrete. The company delivered the concrete in specialized trucks; after the concrete was mixed, the trucks spun it in drums to keep it wet until it could be poured. The truck drivers were members of a local chapter of the Teamsters. The union’s collective-bargaining agreement had expired, and the parties had failed to negotiate a new one. So the union called a strike. But more than simply strike, the union timed its action to inflict maximum damage. It waited until the concrete had been prepared, loaded into the trucks, and dispatched. Then, while the trucks were en route, it told the drivers to walk off the job. The drivers then returned their trucks with full loads. Worse, some of them failed to tell the company their trucks were still full. So the company had to scramble to prevent the concrete from hardening in the truck bins. Using on-hand supervisors, it emptied the bins and saved the trucks. The concrete, however, was ruined.

The company sued the union for intentional property destruction in state court. But a trial court dismissed the complaint. The court held that because the alleged destruction happened during an “arguably protected” strike, the company’s claim was preempted. The Washington Supreme Court agreed. The U.S. Supreme Court then took the case to decide whether intentional property destruction was “arguably protected.”

The Court had no trouble answering that question in the negative. Eight Justices agreed that federal labor law does not protect intentional property destruction. Lower courts, the Board, and even the Supreme Court itself had always treated intentional destruction as unprotected¾even when it happens during an otherwise protected strike. The state courts were therefore wrong to find the claims preempted and wrong to dismiss the case.

That result was unsurprising and (mostly) uncontroversial. More surprising, and potentially more consequential, was a concurrence by Justices Thomas and Gorsuch. The two Justices agreed with the result. But they wrote separately to question the Court’s approach to labor-law preemption in general. Garmon, they wrote, is an outlier of preemption jurisprudence. It does not merely resolve conflicts between state and federal law. It affirmatively casts a shadow, or “penumbra,” over arguably protected conduct. This penumbra deprives states of jurisdiction even when their laws are logically consistent with federal law. Worse, states can’t decide for themselves whether conduct falls into the penumbra. They instead have to wait for the Board to decide¾a decision the Board might never make. And until the Board acts, the injured party is stuck a legal no man’s land: she has no state claim, no federal remedy, and no realistic prospect of getting either.

Thomas and Gorsuch didn’t just hint that they think this approach is wrong; they openly urged the Court to reconsider Garmon. And when the Court does that, they said, it should replace Garmon’s test with one that asks whether state and federal law are in “logical contradiction.” That is, federal law should preempt state law only when it’s logically impossible to comply with both. Otherwise, state courts should be free to step in.

If the Court took that approach, the jurisdictional balance would tilt. States would have much more leeway to regulate labor relations. For example, they could require employers to let union organizers onto their property. Or they could forbid union organizers from soliciting employees at home. And they could enforce those rules in court. Courts could play a much more direct role in interpreting, developing, and applying labor law. Passive deference could give way to active engagement.

That result would track the Court’s recent ideological trend. The Court has expressed increasing skepticism about deferring to agencies. Look no further than its recent decision to accept cert in Loper Bright Enterprises v. Raimondo, where it will reconsider Chevron U.S.A., Inc. v. National Resources Defense Council. Chevron is a well-known monument to the administrative state. It requires courts to defer to certain “reasonable” agency interpretations. It has shifted much lawmaking authority to agencies. As a result, it is commonly held up as a major source of administrative mission creep.

But as Thomas and Gorsuch point out, Garmon has the same effect. Like Chevron, Garmon requires judges to defer to the legal judgments of agency officials. The main difference is that Garmon is less well known. It applies to a narrower band of cases, so it has drawn less attention from the bar and the academy. Yet at least one body seems to be paying attention¾the Court. So if Chevron goes down, Garmon may follow in short order.


To be sure, Glacier established no new doctrine. If the main opinion is discussed in future cases at all, it will likely be at the end of a long string cite. But the concurrence might still stand for something bigger. There is a rising tide of skepticism toward the administrative state. And if the concurrence suggests anything, it’s that the tide could carry labor law along with it.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].