Amicus Curiae Brief — Glacier Northwest, Inc., dba CalPortland, Petitioner v. International Brotherhood of Teamsters Local Union No. 174

No. 21-1449

IN THE

Supreme Court of the United States

___________

GLACIER NORTHWEST, INC., D/B/A/ CALPORTLAND,

Petitioner,

v.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

LOCAL UNION NO. 174,

Respondent.

___________

On Writ of Certiorari To The

Supreme Court Of Washington

___________

BRIEF OF AMICUS CURIAE THE CHAMBER

OF COMMERCE OF THE UNITED STATES OF

AMERICA IN SUPPORT OF PETITIONER

___________

JONATHAN D. URICK

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

CARTER G. PHILLIPS*

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Amicus Curiae The Chamber Of Commerce Of The United States Of America

November 8, 2022

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

STATEMENT OF INTEREST OF AMICUS CURIAE CHAMBER OF COMMERCE OF THE

UNITED STATES ............................................

1

INTRODUCTION AND SUMMARY OF ARGUMENT................................................................

2

ARGUMENT ........................................................

6

I. THE HISTORY OF THE NLRA AND GARMON

PREEMPTION

ESTABLISHES

THAT GLACIER’S STATE-LAW CLAIMS

ARE NOT PREEMPTED .............................

6

II. THE WASHINGTON SUPREME COURT’S

ANALYSIS

IS

FUNDAMENTALLY

FLAWED ......................................................

16

CONCLUSION ....................................................

19

(i)

ii

TABLE OF AUTHORITIES

CASES

Page

Allen-Bradley Local 1111 v. Wis. Emp. Rels.

Bd., 315 U.S. 740 (1942) ...........................

11

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

(1985) .........................................................

9

Amalgamated Util. Workers v. Consol. Edison Co. of N.Y., 309 U.S. 261 (1940) .........

8

Auto. Workers, Local 232 v. Wis. Emp. Rels.

Bd., 336 U.S. 245 (1949) ........................... 6, 13

Cedar Point Nursery v. Hassid, 141 S. Ct.

2063 (2021) ................................................

9

Chamber of Com. of U.S. v. Brown, 554 U.S.

60 (2008) ....................................................

10

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612

(2018) .........................................................

1

Farmer v. United Bhd. of Carpenters &

Joiners of Am., Loc. 25, 430 U.S. 290

(1977) .........................................................

18

FedEx Home Delivery v. NLRB, 563 F.3d

492 (D.C. Cir. 2009) ..................................

1

Garner v. Teamsters Local 776, 346 U.S. 485

(1953) ................................................. 3, 9, 10, 13

Hill v. Florida, 325 U.S. 538 (1945) ............

10

IBEW v. Hechler, 481 U.S. 851 (1987) .........

9

John R. Sand & Gravel Co. v. United States,

552 U.S. 130 (2008) ...................................

16

Kimble v. Marvel Ent., LLC, 576 U.S. 446

(2015) ......................................................... 15, 16

Lingle v. Norge Div. of Magic Chef, Inc., 486

U.S. 399 (1988) ..........................................

9

Linn v. United Plant Guard Workers of Am.,

Local 113, 383 U.S. 53 (1966) ...................

18

Livadas v. Bradshaw, 512 U.S. 107

(1994) .........................................................

9

iii

TABLE OF AUTHORITIES—continued

Page

Local 926, Int’l Union of Operating Eng’rs v.

Jones, 460 U.S. 669 (1983) ........................

14

Lodge 76, Int’l Ass’n of Machinists & Aerospace Workers v. Wis. Emp. Rels. Comm’n,

427 U.S. 132 (1976) ................... 2, 10, 13, 14, 18

NLRB v. Fansteel Metallurgical Corp., 306

U.S. 240 (1939) ............................... 2, 3, 5, 9, 17

NLRB v. Fin. Inst. Emps. of Am., Local

1182, 475 U.S. 192 (1986) .........................

7

NLRB v. Jones & Laughlin Steel Corp., 301

U.S. 1 (1937) ..............................................

7

People v. Amazon.com, 169 N.Y.S.3d 27

(N.Y. App. Div. 2022) ................................

1

San Diego Bldg. Trades Council v. Garmon,

359 U.S. 236 (1959) ............................... 3, 6, 13

Sears, Roebuck & Co. v. San Diego Cnty.

Dist. Council of Carpenters, 436 U.S. 180

(1978) ................................................. 12, 14, 18

Teamsters Local 24 v. Oliver, 358 U.S. 283

(1959) .........................................................

17

UAW v. Russell, 356 U.S. 634 (1958)...........

12

United Auto., Aircraft & Agric. Implement

Workers of Am. v. Wis. Emp. Rels. Bd., 351

U.S. 266 (1956) .................................. 3, 5, 10, 12

United Constr. Workers v. Laburnum Constr. Corp., 347 U.S. 656 (1954).............. 5, 11, 12

Weber v. Anheuser Busch, Inc., 348 U.S. 468

(1955) .........................................................

9

Wis. Dep’t of Indus., Lab. & Hum. Rels. v.

Gould Inc., 475 U.S. 282 (1986) ................

12

Youngdahl v. Rainfair, Inc., 355 U.S. 131

(1957) .........................................................

13

STATUTES

29 U.S.C. §§ 176–180 ...................................

8

iv

TABLE OF AUTHORITIES—continued

Page

29 U.S.C. § 185 .............................................

8

29 U.S.C. § 186 .............................................

8

29 U.S.C. § 187 .............................................

8

1

STATEMENT OF INTEREST OF AMICUS CURIAE CHAMBER OF COMMERCE OF THE

UNITED STATES1

The Chamber of Commerce of the United States of

America (“the Chamber”) is the world’s largest business federation. It represents approximately 300,000

direct members and indirectly represents the interests

of more than 3 million companies and professional organizations of every size, in every industry sector, and

from every region of the country. An important function of the Chamber is to represent the interests of its

members in matters before Congress, the Executive

Branch, and the courts. To that end, the Chamber regularly files amicus curiae briefs in cases, like this one,

that raise issues of concern to the nation’s business

community. See, e.g., Epic Sys. Corp. v. Lewis, 138 S.

Ct. 1612 (2018); FedEx Home Delivery v. NLRB, 563

F.3d 492 (D.C. Cir. 2009); People v. Amazon.com, 169

N.Y.S.3d 27 (N.Y. App. Div. 2022).

Many members of the Chamber fall within the jurisdiction of the National Labor Relations Act (“NLRA” or

“Act”), and therefore have a strong interest in its interpretation and application. They support the

NLRA’s preemption of state laws that interfere with

the National Labor Relations Board’s primary jurisdiction to interpret and apply the Act, but they also support this Court’s longstanding precedent excepting

from preemption state laws deterring and punishing

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, its members, or its counsel, made any monetary contribution intended to

fund the preparation or submission of this brief. Both parties

have consented to the filing of this brief.

2

intentional property damage in connection with labor

disputes.

The decision below contravenes this Court’s decisions in two respects—first, by holding that intentional destruction of property is arguably protected

conduct, in conflict with NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 253 (1939), and other authority; and, second, by holding that the intentional destruction of property does not fall within the long established “local feeling” exception to preemption, in

conflict with numerous cases, including Lodge 76, International Ass’n of Machinists & Aerospace Workers

v. Wisconsin Employment Relations Commission, 427

U.S. 132, 136 (1976).

INTRODUCTION AND SUMMARY

OF ARGUMENT

This case involves a labor dispute between Glacier

Northwest (“Glacier”) and its employees who are represented by the International Brotherhood of Teamsters Local Union No. 174 (“Teamsters” or “Union”).

Glacier is a concrete company that uses mixing trucks

to deliver and pour concrete for customers. In its statelaw complaint filed in state court, Glacier alleged that

the Teamsters intentionally waited until the concrete

trucks were fully loaded for deliveries, and then called

a work stoppage that was deliberately timed to ensure

destruction of the company’s property. Pet. App. 3a–

5a, 47a–48a, 111a, 147a. Specifically, Glacier asserted

that the Union’s timing required the company either

(i) to allow the concrete to harden in the trucks destroying the truck’s mixing drums, or (ii) to dispose of

the concrete promptly in a costly way that destroyed

its value and prevented its delivery to customers. Id.

at 3a, 5a & n.3. In its state-law action, Glacier sought

damages for the property damage that resulted from

3

the Union’s decision. The Washington Supreme Court

held that Glacier’s state-law claims were preempted by

the NLRA.

Since the NLRA’s enactment, this Court has recognized that (i) the Act has preemptive effect to ensure

the NLRB’s primary jurisdiction over labor relations

and to facilitate development of a uniform national labor law, and (ii) the Act “leaves much to the states,

though Congress has refrained from telling us how

much.” Garner v. Teamsters Local 776, 346 U.S. 485,

488 (1953). This Court has spent the past 70 years reaffirming the Act’s preemptive effect and defining

“how much” has been left to the States.

It is now well established that the NLRA generally

preempts state-law claims based on conduct that is

“arguably protected” or “arguably prohibited” by that

Act. San Diego Bldg. Trades Council v. Garmon, 359

U.S. 236, 246 (1959). It is equally well established,

however, that union members’ intentional destruction

of an employer’s property is not even “arguably protected,” see Fansteel, 306 U.S. at 256. Additionally, it

is clear that the Act does not preempt claims based on

even “arguably protected” conduct if that “conduct

touche[s] interests so deeply rooted in local feeling and

responsibility that, in the absence of compelling congressional direction, [courts] could not infer that Congress ha[s] deprived the States of the power to Act,”

Garmon, 359 U.S. at 243–44. Critically here, under

longstanding precedent, this Court’s “local feeling” exception to preemption applies to state-law claims for

the intentional destruction of property. See, e.g.,

United Auto., Aircraft & Agric. Implement Workers of

Am. v. Wis. Emp. Rels. Bd., 351 U.S. 266, 274 (1956)

(“[t]he dominant interest of the State in preventing violence and property damage cannot be questioned.”).

4

Accordingly, on their face, Glacier’s allegations state

a claim that falls outside the scope of NLRA preemption under this Court’s decades-old precedent interpreting the Act.2 Intentional property damage is not

protected, even arguably, by the NLRA. And, even assuming it were, intentional property damage clearly

falls in the heartland of the Court’s exception to

preemption for matters of intense and powerful “local

feeling.” In both respects, this Court’s interpretation of

the NLRA, and specifically of the line between the

claims it preempts and those it does not, is longstanding and broadly accepted. The Court’s approach appropriately balances the important federal interest in a

uniform national law of labor relations and the state

interests at stake. The Court’s interpretation of the

Act deserves significant stare decisis weight; Congress

has not altered it; and there is no basis for disturbing

it.

The Washington Supreme Court, however, held

that the Teamster’s intentional destruction of Glacier’s property was “arguably protected” because “economic harm may be inflicted through a strike as a legitimate bargaining tactic,” Pet. App. 23a, and that the

State’s interest in protecting citizens from the intentional destruction of their property does not qualify for

the “local feeling” exception to preemption because it

does not involve violence. That decision is doubly

wrong.

Although the States have no cognizable interest in

prohibiting or limiting the economic harm that may result from the use of lawful bargaining tactics and tools

under the NLRA, intentional property damage is not a

“legitimate bargaining tactic.” This Court has made

2 As it was required to do, the Washington Supreme Court accepted the complaint’s factual allegations as true. Pet. App. 13a.

5

that clear in numerous cases. See Fansteel, 306 U.S. at

253 (“[t]o justify [despoiling property] because of the

existence of a labor dispute … would be to put a premium on resort to force instead of legal remedies and

to subvert the principles of law and order which lie at

the foundations of society”). See also, e.g., United Constr. Workers v. Laburnum Constr. Corp., 347 U.S. 656

(1954); United Auto., Aircraft & Agric. Implement

Workers of Am., 351 U.S. at 274; infra at 9-10.

Similarly, this Court has repeatedly explained that

intentional property destruction falls within the “local

feeling” exception to NLRA preemption, and has also

held that numerous non-violent torts are excepted

from preemption, including defamation and intentional infliction of emotional distress. The Washington

Supreme Court’s decision thus rested on two fundamental misunderstandings of this Court’s precedent.

In addition to contravening this Court’s decisions,

the Washington Supreme Court’s decision is bad labor

policy. Allowing unions to treat intentional property

damage as a bargaining “strategy” would encourage its

use, exacerbate violence and property damage in connection with labor disputes, and undermine the industrial peace the NLRA is intended to further. The NLRA

does not provide remedies for intentional property destruction in connection with labor disputes. The decision would thus leave a law-free zone for intentional

property destruction in connection with a labor dispute. No risk of liability would deter such conduct, and

no remedy would be available for the damage inflicted.

States would be deprived of a traditional element of

their police powers. Rejecting this outcome, this Court

has explained that the States still may exercise their

historical powers over such “actual or threatened violence to persons or destruction of property. … This con-

6

duct is governable by the state or it is entirely ungoverned.” Auto. Workers, Local 232 v. Wis. Emp. Rels.

Bd., 336 U.S. 245, 253–54 (1949).

The Washington Supreme Court’s decision should be

reversed.

ARGUMENT

I. THE HISTORY OF THE NLRA AND GARMON PREEMPTION ESTABLISHES THAT

GLACIER’S STATE-LAW CLAIMS ARE NOT

PREEMPTED.

From its earliest days, the National Labor Relations

Act has been interpreted not only to preempt state

laws regulating conduct protected by the Act, but also

to permit the States to continue to regulate matters “so

deeply rooted in local feeling and responsibility that,

in the absence of compelling congressional direction,

[courts] could not infer that Congress had deprived the

States of the power to act.” Garmon, 359 U.S. at 244.

This Court struck that balance in its first cases construing the scope of the Act’s preemptive force: It protected the National Labor Relations Board’s primary

jurisdiction over administration of the Act to establish

a uniform national labor-relations law, and it displaced state regulation of labor-relations activities

that Congress intended to leave unregulated. Simultaneously, the Court preserved the States’ traditional

role in maintaining civil order and protecting their citizens’ safety and property.

As a result, much conduct regulated by the NLRA

has been, and continues to be, the subject of state regulation in certain circumstances, such as picketing,

trespass, defamation, and property destruction. Where

that conduct is either clearly unprotected by the NLRA

7

or subject to the States’ traditional authority to maintain civil order, state laws are not preempted. As explained infra, the Washington Supreme Court’s decision—holding that intentional property destruction is

arguably protected conduct under the NLRA and

therefore that claims based on such conduct are

preempted—is flatly inconsistent with this Court’s

precedent delineating the scope of the NLRA’s protected rights and its preemption of state law.

Congress enacted the NLRA in 1935. Its “basic purpose” was “to preserve industrial peace” by establishing a national law of labor relations and creating a federal agency with primary jurisdiction over that law.

NLRB v. Fin. Inst. Emps. of Am., Local 1182, 475 U.S.

192, 208 (1986). In 1937, this Court upheld Congress’s

power under the Commerce Clause to legislate in the

realm of labor relations. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). Regulation of labor

relations had previously been considered the province

of the States; with the NLRA, Congress began the process of creating uniform federal law.

From the outset, this Court read the Act to implement a general Congressional intent to establish a uniform national law of labor relations administered by

the NLRB:

To attain its object Congress created a particular

agency, the National Labor Relations Board, and

established a special procedure. … Within the

range of its constitutional power, Congress was

entitled to determine what remedy it would provide, the way that remedy should be sought, the

extent to which it should be afforded, and the

means by which it should be made effective. … By

the express terms of the Act, the Board was made

the exclusive agency for that purpose.

8

Amalgamated Util. Workers v. Consol. Edison Co. of

N.Y., 309 U.S. 261, 264 (1940) (citing 29

U.S.C. § 160(a)). See id. at 267 (“Section 10(a) gives

the [NLRB] exclusive jurisdiction to prevent and redress unfair labor practices…. [I]t is intended to dispel

the confusion resulting from dispersion of authority

and to establish a single paramount administrative or

quasi-judicial authority in connection with the development of the Federal American law regarding collective bargaining”) (quoting S. Rep. No. 573, 74th Cong.,

1st Sess. 15).

As initially enacted, the NLRA protected only the

rights of employees to organize and engage in concerted activities such as collective bargaining. With

the passage of the Taft-Hartley Act in 1947 (also

known as the Labor Management Relations Act

(“LMRA”)),3 Congress added to the NLRA significant

protections for employers and adopted a general code

of regulation for labor relations.4 But the purpose of

the original NLRA—to foster industrial peace by creating a uniform federal labor-relations law administered by a federal agency with primary jurisdiction

over that law—remained the same. In 1950, shortly after the NLRA was amended, this Court again explained:

Congress has taken in hand this particular type

3 Except where the text indicates otherwise, reference to the

NLRA hereafter refers to that Act as amended by the LMRA.

4 In addition to amending the NLRA, the LMRA also addressed

national emergencies (sections 206–210, 29 U.S.C. §§ 176–180),

suits by and against labor organizations for violation of contracts

between employers and labor organizations (section 301, 29

U.S.C. § 185), regulation of welfare and retirement funds (section

302, 29 U.S.C. § 186), and damage for secondary boycotts and jurisdictional disputes (section 303, 29 U.S.C. § 187).

9

of controversy where it affects interstate commerce. … Congress did not merely lay down a substantive rule of law to be enforced by any tribunal

competent to apply law generally to parties. …

Congress evidently considered that centralized

administration of specially designed procedures

was necessary to obtain uniform application of its

substantive rules.

Garner, 346 U.S. at 488–90.

In the decades since the NLRA’s enactment, this

Court has clarified the preemptive scope of the Act innumerous decisions. It has defined conduct that the

Act protects and has delineated “the areas … withdrawn from state power.” Weber v. Anheuser-Busch,

Inc., 348 U.S. 468, 480 (1955).5

With respect to the first, it has long been clear that

intentional destruction of property is not protected

conduct. In one of its first decisions under the Act, in

1939, this Court held in Fansteel that the Act does not

authorize employees to engage in “unlawful acts,” including “the seizure and conversion of [] goods, or the

despoiling of [] property,” 306 U.S. at 253. This Court’s

early conclusion—that the NLRA did not protect intentional property destruction—is unsurprising. “The

Founders recognized that the protection of private

property is indispensable to the promotion of individual freedom.” Cedar Point Nursery v. Hassid, 141 S.

Ct. 2063, 2071 (2021). And, in the context of the NLRA,

5 This Court used a similar incremental approach in defining

the scope of preemption under section 301 of the LMRA to ensure

that uniform federal law governs the interpretation and enforcement of collective bargaining agreements. See, e.g., AllisChalmers Corp. v. Lueck, 471 U.S. 202 (1985); IBEW v. Hechler,

481 U.S. 851 (1987); Lingle v. Norge Div. of Magic Chef, Inc., 486

U.S. 399 (1988); Livadas v. Bradshaw, 512 U.S. 107 (1994).

10

this Court has likewise recognized that States play the

primary role in protecting their citizens’ property from

damage and destruction. See Lodge 76, 427 U.S. at 136

(“[p]olicing of actual or threatened violence to persons

or destruction of property has been held most clearly a

matter for the States”); United Auto., Aircraft & Agric.

Implement Workers of Am., 351 U.S. at 274 (“[t]he

dominant interest of the State in preventing violence

and property damage cannot be questioned.”).

With respect to the second—the preemptive scope of

the NLRA—this Court’s early decisions both establish

a general rule of preemption and make clear that the

Act does not deprive States of their power to deter and

punish torts addressing intentional property destruction. This Court held that the regulation of conduct

that the Act protects or proscribes—whether conduct

of an employer or a union—falls within the jurisdiction

of the NLRB, and that state attempts to regulate such

conduct are preempted. See, e.g., Hill v. Florida, 325

U.S. 538 (1945) (holding that the State may not prohibit or condition the exercise of rights which federal

law protects); Garner, 346 U.S. at 499 (protecting employees’ right to engage in peaceful picketing).6

Significantly, however, this Court has also made

clear that conduct that is protected or prohibited by

6 This Court has also preempted state regulation that seeks to

regulate bargaining conduct and tactics that Congress intended

to leave unregulated by either federal or state legislatures or

courts. See Chamber of Com. of U.S. v. Brown, 554 U.S. 60 (2008)

(Congress displaced both state and federal regulation of certain

aspects of labor disputes to allow the bargaining parties to settle

their differences using lawful economic weapons); Lodge 76, 427

U.S. at 140 (“the crucial inquiry [is] whether Congress intended

that the conduct involved be unregulated because left ‘to be controlled by the free play of economic forces’”). That strand of NLRA

displacement and preemption is not at issue here.

11

the Act may also be conduct historically at the core of

the States’ police power, and thus an appropriate subject for continued state regulation. For example, in Allen-Bradley Local 1111 v. Wisconsin Employment Relations Board, 315 U.S. 740 (1942), this Court addressed conduct including the union’s mass picketing,

threats of bodily injury, and threats to property, all

matters traditionally within the States’ police power to

preserve public safety and order. Upholding the state’s

power, the Court explained that “Congress has not

made such employee and union conduct … subject to

regulation by the federal Board.” Id. at 749. The Court

explained that the situation was “not basically different from the common situation where a State takes

steps to prevent breaches of the peace in connection

with labor disputes.” Id. at 751. Since 1942, this Court

has affirmed and restated this point on multiple occasions.

In United Construction Workers v. Laburnum Construction Corp., 347 U.S. 656 (1954), a union demanded that an employer recognize it as the bargaining representative of its employees. When the employer refused, the union’s agents “threatened and intimidated [the employer’s] officers and employees with

violence to such a degree that respondent was compelled to abandon all its projects in the area.” Id. at

658. The Court recognized that this conduct was at

least arguably prohibited by the NLRA, but declined

to hold the employer’s state-law claim preempted, relying on the State’s traditional police power, and explained that if state law were preempted, “the offenders, by coercion of the type found here, may destroy

property without liability for the damage done.” Id. at

12

669. The Court noted that the NLRA lacked any parallel remedy for the employer’s harm,7 but also focused

on the State’s traditional role in maintaining civil order by deterring and punishing intentional property

damage. Even more clearly, this Court concluded that

“there is no doubt that [prior to enactment of the

LMRA] if agents of [labor] organizations at that time

had damaged property through their tortious conduct,

the persons responsible would have been liable to a

tort action in state courts for the damage done,” and

that the LMRA had only “increased … the legal responsibilities of labor organizations.” Id. at 666.

Two years later, in United Automobile, Aircraft &

Agricultural Implement Workers of America, 351 U.S.

266, the Court again observed that “[t]he dominant interest of the State in preventing violence and property

damage cannot be questioned.” Id. at 274. See also

UAW v. Russell, 356 U.S. 634 (1958) (allowing state

law claim for damages for wrongful interference with

lawful occupation as consistent with Laburnum);

7 In assessing preemption under the NLRA, this Court has

sometimes said that the States cannot grant remedies for unfair

labor practices that the NLRB cannot grant. Wis. Dep’t of Indus.,

Lab. & Hum. Rels. v. Gould, Inc., 475 U.S. 282, 287 (1986) (holding preempted a state law forbidding state procurement of products manufactured or sold by persons who had repeatedly violated the NLRA). This statement is generally made when States

enact or enforce laws setting up a regulatory regime directed at

labor relations. In contrast, when the States enact or enforce laws

of general application, this Court generally does not preempt

their application to conduct that is otherwise connected to a labor

dispute or remedies that might differ from those available under

the NLRA. As this Court explained, it is less likely to preempt

“laws of general applicability” which may reflect legitimate state

interests unrelated to labor policy. Sears, Roebuck & Co. v. San

Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180, 194–95

(1978).

13

Youngdahl v. Rainfair, Inc., 355 U.S. 131 (1957) (affirming state-law injunction forbidding workers from

obstructing the streets, threatening or provoking violence, while vacating provisions that prohibited peaceful picketing).

In Automobile Workers, the Court explained that

“Congress designedly left open an area for state control.” 336 U.S. at 253 (internal quotation marks omitted). And, it held, that where a strike is illegal because

it “consist[s] of actual or threatened violence to persons or destruction of property,” “[p]olicing of such conduct is left wholly to the states.” Id. See id. (“In this

case there was also evidence of considerable injury to

property and intimidation of other employees by

threats[,] and no one questions the state’s power to police coercion by those methods.”).

Garmon, decided in 1959, summarized but did not

break with the Court’s historical treatment of the

scope of NLRA preemption. In that case, the union was

engaged in peaceful picketing to compel an employer

to substitute one union with a minority union. This

Court held that generally, “[i]n the absence of the

Board’s clear determination that an activity is neither

protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this

Court to decide whether such activities are subject to

state jurisdiction,” 359 U.S. at 246. Significantly, however, this Court recognized and expressly preserved

the “local feeling” exception. It echoed Garner, explaining that “the compelling state interest, in the scheme

of our federalism, in the maintenance of domestic

peace is not overridden in the absence of clearly expressed congressional direction.” Id. at 247.

This Court has since adhered to this balanced approach. In Lodge 76, in describing the “local feeling”

14

exception to preemption, the Court stated that “[p]olicing of actual or threatened violence to persons or destruction of property has been held most clearly a matter for the States.” 427 U.S. at 136. And in Sears, Roebuck & Co. v. San Diego County District Council of

Carpenters, 436 U.S. 180 (1978), this Court declined to

preempt a state-law trespass action even though the

conduct was both arguably prohibited and arguably

protected. The Court explained that “whether the picketing had an objective proscribed by federal law was

irrelevant to the state claim,” which involved only

whether the employees were at a location on the employer’s property without permission. Id. at 198.

Plainly, if a trespass on property falls within the “local

feeling” exception, so, too, does the far greater intrusion on property rights when the employer’s property

itself is destroyed. The Court also emphasized that

preemption is less likely when the State is enforcing

“laws of general applicability … in connection with a

labor dispute,” id. at 193, because such laws reflect

state interests unrelated to labor policy, underlining

the importance of the State’s general police power to

protect public safety and property.

This Court has summarized its precedent about the

preemptive scope of the NLRA as follows:

The question of whether regulation should be allowed because of the deeply rooted nature of the

local interest involves a sensitive balancing of any

harm to the regulatory scheme established by

Congress, either in terms of negating the Board’s

exclusive jurisdiction or in terms of conflicting

substantive rules, and the importance of the asserted cause of action as a protection to its citizens.

Local 926, Int’l Union of Operating Eng’rs v. Jones, 460

U.S. 669, 676 (1983) (citations omitted). Plainly, the

15

States play an important traditional role in the protection of private property rights that supports this

Court’s long recognition that such state-law claims are

subject to the “local feeling” exception and therefore

not preempted.

As described above, this Court has defined the contours of Garmon preemption during the past 70 years,

including long before Garmon itself was decided. By

enacting the NLRA, Congress sought to support industrial peace by establishing a uniform federal law regulating labor disputes, to be administered by the NLRB,

which had primary jurisdiction over labor relations.

Garmon preemption of state laws that would unduly

interfere with this federal regime was essential to the

achievement of Congress’s purpose of stable industrial

relations.

The Court has also consistently held that intentional

property damage is not protected activity under the

NLRA, and that the States retain their authority with

respect to intentional property damage, even if that

conduct is arguably protected by or prohibited by the

NLRA. For almost 75 years, Congress has declined to

modify this Court’s framework for protecting both the

federal law governing labor relations and the States’

police power; that carefully calibrated approach has

stood the test of time.

For decades likewise, employers and labor unions

have conducted their labor relations in this legal context and against the backdrop provided by Garmon

preemption. Continued adherence to this precedent is,

accordingly, also supported by stare decisis. Applying

that doctrine here “promotes the evenhanded, predictable, and consistent development of legal principles,

fosters reliance on judicial decisions, and contributes

to the actual and perceived integrity of the judicial process.” Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455

16

(2015). And, where, as here, there is a “reasonable possibility that parties have structured their business

transactions” in light of this Court’s decisions, “we

have one more reason to let it stand.” Id. at 457–58.

“What is more, stare decisis carries enhanced force

when a decision … interprets a statute.” Id. at 456. See

also John R. Sand & Gravel Co. v. United States, 552

U.S. 130, 139 (2008). (“stare decisis” has “special force”

in statutory interpretation because “Congress remains

free to alter what [the Court has] done”).

This Court should apply its longstanding precedent

and reverse the decision of the Washington Supreme

Court.

II. THE WASHINGTON SUPREME COURT’S

ANALYSIS IS FUNDAMENTALLY FLAWED.

The Washington Supreme Court appeared to believe the Teamsters’ conduct was arguably protected

for two reasons.

First, the court relied on the theory that “economic

harm may be inflicted through a strike as a legitimate

bargaining tactic.” Pet. App. 23a. As explained above,

this contention wholly misunderstands this Court’s

precedent. Critically, moreover, holding that state

laws governing the intentional destruction of property

are preempted if the tortious conduct relates to a labor

dispute is bad labor policy. In labor relations, employers and unions have a number of legitimate and lawful

economic weapons to achieve their goals. Plainly, however, Congress did not intend to allow, and this Court

has never allowed, unions to destroy employers’ property to obtain leverage in labor negotiations. Doing so

would destabilize labor relations and increase the potential for violent confrontations, in contravention of

the NLRA’s purpose to achieve industrial peace for the

benefit of our national economy.

17

Treating claims for intention property destruction

during labor disputes as preempted would also create

a law-free zone for such conduct. The NLRA provides

no remedy for that misconduct. The incentive for those

involved in labor disputes—often heated contests—to

engage in misconduct is evident, and it will be enhanced, and thus more frequent, if doing so is risk-free.

On the Washington Supreme Court’s view of preemption, employers who suffer intentional property damage in connection with a labor dispute will be left without a remedy. There is no sound reason to exempt intentional destruction of property from the States’ legal

regimes simply because it is connected with a labor negotiation or dispute, and there are many good labor

policy reasons not to do so.

The State does not have an interest in preventing or

mitigating the economic harm that arises from the use

of lawful bargaining tactics, including a lawful work

stoppage or lockout or the terms of a lawful collective

bargaining agreement. Thus, a union or employer’s

state-law claim of economic harm resulting from a lawful work stoppage, lockout, or collective bargaining

agreement would likely be preempted. See, e.g., Teamsters Local 24 v. Oliver, 358 U.S. 283, 295–96 (1959)

(preempting the application of Ohio antitrust law to

collectively bargained truck rental and lease terms). In

marked contrast, the State has a powerful interest in

exercising its police power to prevent or punish the destruction of property, including when that conduct is

associated with a labor dispute. State-law claims

based on generally applicable state law governing

claims for property destruction are not preempted. See

Fansteel, 306 U.S. at 253 (“to justify [despoiling property] because of the existence of a labor dispute …

would be to put a premium on resort to force instead of

legal remedies and to subvert the principles of law and

order which lie at the foundations of society”).

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Second, the Washington Supreme Court appeared to

believe that the “local feeling” exception applies only

to “intimidation and threats of violence.” Pet. App.

18a–19a; see id. at 21a (requiring “violent or outrageous conduct”). But, as detailed above, this Court has

expressly stated that “[p]olicing of actual or threatened violence to persons or destruction of property has

been held most clearly a matter for the States,” Lodge

76, 427 U.S. at 136 (emphasis added). It has also held

that employers may pursue state-law claims for trespass based on peaceful picketing, i.e., non-violent picketing, Sears, 436 U.S. at 207.

Indeed, this Court has frequently extended the “local

feeling” exception to preemption for non-violent torts.

For example, in Linn v. United Plant Guard Workers

of America, Local 113, 383 U.S. 53 (1966), this Court

declined to preempt a state-law defamation claim. And

in Farmer v. United Brotherhood of Carpenters & Joiners of America, Local 25, 430 U.S. 290 (1977), this

Court allowed an employee’s state-law claim for intentional infliction of emotional distress and harassment

to go forward, explaining that the “inflexible application of the [Garmon] doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State’s interest

is one that does not threaten undue interference with

the federal regulatory scheme.” Id. at 302. This Court’s

precedent does not confine the “local feeling” exception

to intentional property damage accompanied by other

violence.

* * * *

Federal preemption protects the primary jurisdiction of the NLRB and its ability to create and enforce

a nationally uniform body of federal labor law in service of the goals of the NLRA, including fostering

19

peaceful labor relations and the protecting employer

and employee rights within that regime. But States

have a compelling traditional interest in maintaining

civil order by deterring and punishing violence and intentional property destruction. This interest is particularly powerful in the context of labor disputes because federal law provides no effective remedy for violations of generally applicable laws that protect civil

order and private property. This Court’s delineation of

Garmon preemption and its “local feeling” exception

has allowed courts to effectively balance these vitally

important federal and state interests for decades. It

should be reaffirmed.

CONCLUSION

The decision of the Washington Supreme Court

should be reversed.

Respectfully submitted,

JONATHAN D. URICK

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

CARTER G. PHILLIPS*

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

November 8, 2022

* Counsel of Record

Counsel for Amicus Curiae The Chamber Of Commerce Of The United States Of America