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UC Law Journal

Abstract

The Supreme Court’s 2022–2023 term was, unsurprisingly, terrible for millions of Americans. From the environment to affirmative action to student loan forgiveness, the Court remained committed to its project of reshaping the nation’s laws in its conservative image. But despite its well-demonstrated antipathy for organized labor, the Court in Glacier Northwest v. International Brotherhood of Teamsters managed to leave a long-standing, purportedly worker-friendly doctrine in federal labor law largely intact. Glacier Northwest presented the question of whether an employer may sue a union in state court for damages over a strike that allegedly causes property destruction, or whether, under the Court’s decision in San Diego Building Trades Council v. Garmon, an employer’s claim is federally preempted and thus must be brought before the National Labor Relations Board if it alleges conduct that is even “arguably” protected or prohibited by the National Labor Relations Act. Rather than do what many feared it might and overrule Garmon, the Court instead found that the Teamster’s alleged conduct—allowing delivery drivers at a cement factory to fill their trucks with wet cement before calling a strike, thereby creating the risk of imminent property destruction—was not even arguably protected by federal law. The Court thus declined its invitation, at least for now, to discard a doctrine that has traditionally been viewed as a shield against costly state lawsuits by employers.

As this Note seeks to demonstrate, however, Garmon’s application within the current labor and employment law landscape is more ambiguous than the reaction to Glacier Northwest might imply. Indeed, recent case law suggests that Garmon is no longer serving American workers in the same way it did when it was decided, during the industrial pluralist heyday of the 1950s. This Note expands upon the existing body of scholarship that has criticized Garmon as overly broad and ill-suited to the realities of the modern American workplace. It argues that Garmon has in part become a procedural tool for employers, both those seeking to avoid liability for violating their employees’ rights under state law, as well as those seeking to avoid compliance with state and local ordinances aimed at shoring up workplace protections. It concludes by suggesting that as long as the NLRA remains woefully deficient in terms of protecting workers and unions from extreme union-busting tactics, federal preemption should not stand as an obstacle to state and local causes of action and experimentation aimed at facilitating workplace justice.

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