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., DBA CALPORTLAND,

Petitioner,

v.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

LOCAL UNION NO. 174,

Respondent.

__________

On Writ of Certiorari

to the Supreme Court of Washington

__________

BRIEF OF

UNITED BROTHERHOOD OF CARPENTERS

AND JOINERS OF AMERICA AND

SERVICE EMPLOYEES INTERNATIONAL UNION

AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

__________

MATTHEW F. CAPECE

UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS

OF AMERICA

101 Constitution Ave., N.W.

Washington, D.C. 20001

(203) 231-0398

DANIEL M. SHANLEY

SHANLEY, A PROFESSIONAL

CORP.

533 S. Fremont Ave.

9th Floor

Los Angeles, CA 90071

(213) 488-4100

DAVID C. FREDERICK

Counsel of Record

SCOTT K. ATTAWAY

KATHLEEN W. HICKEY*

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

* Admitted only in Massachusetts;

supervised by members of the firm

December 8, 2022

(Additional Counsel Listed On Inside Cover)

BRIAN F. QUINN

SHANLEY, APC

101 Constitution Ave., N.W.

Washington, D.C. 20001

(202) 589-1151

NICOLE G. BERNER

General Counsel

SERVICE EMPLOYEES

INTERNATIONAL UNION

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 730-7383

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION ....................................................... 4

STATEMENT .............................................................. 6

SUMMARY OF ARGUMENT .................................... 8

ARGUMENT ............................................................. 11

I. GLACIER’S CONCOCTED “PROPERTY

DESTRUCTION” STANDARD IS CONTRARY TO GARMON AND WRONGLY

WOULD ERODE THE BOARD’S PRIMARY JURISDICTION ................................. 11

A. The Board Regularly Has Found

Strikes To Be Protected Conduct

Even When They Imperil Or Damage

Perishable Goods ...................................... 11

B. Glacier Ignores The Distinction

Between Incidental Damage To Perishable Goods And Serious Damage

To Plant Facilities..................................... 15

C. Glacier’s “Intentional Destruction Of

Property” Tagline Is Unlawful And

Unworkable ............................................... 21

II. THE NLRA DOES NOT REQUIRE

ADVANCE NOTICE OF A STRIKE

AND IT ALLOWS STRONG ECONOMIC PRESSURE BY A UNION

FOR BETTER PAY, BENEFITS, AND

WORKING CONDITIONS ............................ 22

ii

A. The NLRA Does Not Require Advance

Notice Of A Strike And States May

Not Indirectly Require Such Advance

Notice ........................................................ 22

B. Unions May Strike Without Notice

To Apply Strong Economic Pressure ........ 25

III. THE NLRB, UNDER ITS PRIMARY

JURISDICTION,

FIRST

SHOULD

ADJUDICATE

THE

COMPLAINT

AGAINST GLACIER SET FOR HEARING ON JANUARY 24, 2023......................... 26

A. The Court Could Dismiss The Writ Of

Certiorari As Improvidently Granted ...... 26

B. Glacier Will Not Be Prejudiced

By The Board’s Primary-Jurisdiction

Adjudication .............................................. 28

C. The Court Should Reject The Artful

Pleading Assertion That Review

Under Garmon Is Limited To Allegations In Glacier’s Complaint And

Construed In Its Favor ............................. 29

CONCLUSION.......................................................... 30

iii

TABLE OF AUTHORITIES

Page

CASES

American Ship Bldg. v. NLRB, 380 U.S. 300

(1965) ................................................................... 26

Brown v. Hotel Emps., 468 U.S. 491 (1984) ............. 18

Columbia Portland Cement v. NLRB, 915 F.2d

253 (6th Cir. 1990) ............................................... 24

Cranshaw Constr. v. Ironworkers, 891 F. Supp.

666 (D. Mass. 1995) ............................................. 19

Davis Supermarkets v. NLRB, 2 F.3d 1162

(D.C. Cir. 1993) .................................................... 27

Dayton Newspapers v. NLRB, 402 F.3d 651

(6th Cir. 2005)...................................................... 26

Golden State Transit v. Los Angeles, 475 U.S.

608 (1986) .......................................................25, 26

Jama v. ICE, 543 U.S. 335 (2005) ............................ 22

Lodge 76 Machinists v. Wisconsin Emp’t Comm’n,

427 U.S. 132 (1976) ............................................. 19

Longshoremen v. Davis, 476 U.S. 380 (1986)......28, 30

Metropolitan Stevedore v. Rambo, 515 U.S. 291

(1995) ................................................................... 19

Motor Coach Emps. v. Wisconsin Emp’t Bd.,

340 U.S. 383 (1951) ............................................. 23

NLRB v. A. Lasaponara & Sons, 541 F.2d 992

(2d Cir. 1976) ............................................12, 13, 17

NLRB v. Allis-Chalmers Mfg., 388 U.S. 175

(1967) ................................................................... 23

NLRB v. Fansteel Metallurgical, 306 U.S. 240

(1939) ............................................................... 9, 16

iv

NLRB v. Insurance Agents, 361 U.S. 477

(1960) ................................................................... 25

NLRB v. Marshall Car Wheel, 218 F.2d 409

(5th Cir. 1955)............................................9, 10, 15,

16, 17, 21

Rockford Redi-Mix v. Teamsters Local 325,

551 N.E.2d 1333 (Ill. App. Ct. 1990) ................... 19

San Diego Millmen’s Union v. Garmon, 359 U.S.

236 (1959) ............................................3, 4, 8, 9, 10,

11, 19, 27, 29, 30

Sears, Roebuck v. San Diego Carpenters, 436 U.S.

180 (1978) ............................................................ 11

The Monrosa v. Carbon Black Exp., 359 U.S. 180

(1959) ................................................................... 28

U.S. Steel Co. (Joliet Coke Works) v. NLRB,

196 F.2d 459 (7th Cir. 1952) ........................... 9, 16

United Mine Workers v. Laburnum Constr.,

347 U.S. 656 (1954) ........................................18, 19

ADMINISTRATIVE DECISIONS

Ablon Poultry & Egg, 134 N.L.R.B. 827 (1961) ....... 13

Barkus Bakery, 214 N.L.R.B. 478 (1974), enf ’d,

517 F.2d 1397 (3d Cir. 1975) ............................... 14

Central Oklahoma Milk Producers, 125 N.L.R.B.

419 (1959), enf ’d, 285 F.2d 495 (10th Cir.

1960)..........................................................14, 17, 20

Leprino Cheese, 170 N.L.R.B. 601 (1968), enf ’d,

424 F.2d 184 (10th Cir. 1970) ..................12, 15, 17

Lumbee Farms, 285 N.L.R.B. 497 (1987), enf ’d,

1988 WL 68378 (4th Cir. June 28, 1988)

(judgment noted at 850 F.2d 689 (table)) ......13, 17

v

M&M Bakeries, 121 N.L.R.B. 1596 (1958), enf ’d,

271 F.2d 602 (1st Cir. 1959) ................................ 14

Morris Fishman & Sons, 122 N.L.R.B. 1436

(1959), enf ’d, 278 F.2d 792 (3d Cir. 1960) ......... 14,

17, 20

CONSTITUTION, STATUTES, AND RULES

U.S. Const. art. VI, cl. 2 (Supremacy Clause).......... 18

Labor Management Relations Act, 1947, 29 U.S.C.

§ 141 et seq.:

29 U.S.C. § 142(2) ................................................ 23

National Labor Relations Act, 29 U.S.C. § 151

et seq. ............................................................ passim

§ 1, 29 U.S.C. § 151:

¶ 2 ..................................................................... 3

¶ 3 ............................................................... 3, 23

§ 7, 29 U.S.C. § 157 ....................................2, 3, 4, 9,

11, 18, 23, 27

§ 8, 29 U.S.C. § 158 .............................................. 18

§ 8(g), 29 U.S.C. § 158(g) ..................................... 22

§ 10(f ), 29 U.S.C. § 160(f ) .................................... 28

§ 13, 29 U.S.C. § 163 ............................................ 23

Sup. Ct. R.:

Rule 37.3(a) ............................................................ 1

Rule 37.6 ................................................................ 1

vi

OTHER MATERIALS

DollarTimes, Inflation Calculator, https://www.

dollartimes.com/inflation/ ..............................14, 16

ProMatcher, Seattle Concrete Costs & Prices –

ProMatcher Cost Report, https://concrete.pro

matcher.com/cost/seattle-wa-concrete-costsprices.aspx ............................................................. 8

Taiheiyo Cement Corp., Annual Report April 1,

2017-March 31, 2018, at https://www.taiheiyocement.co.jp/english/ir/annualreport.html ........... 8

INTEREST OF AMICI CURIAE 1

Amicus United Brotherhood of Carpenters and

Joiners of America (“Carpenters Union”) represents

hundreds of thousands of union tradespeople who

provide skilled carpentry and related craftsmanship

each day. See www.carpenters.org.

Carpenters lay out and construct walls and ceilings, doors and windows, roofing supports, finely

detailed cabinets, and other interior and exterior

surfaces. Carpenters also work regularly in concrete

construction – the subject of this case – laying

out and building precise and sturdy forms to hold

massive concrete pours delivered by concrete-mixing

trucks on myriad projects including high-rise buildings, highway overpass piers, and bridges.

The Carpenters Union is committed to advancing

the craftsmanship of its members by proper and

ongoing training for each tradesperson. It considers

skill, safety, productivity, and attitude to be the keys

to success for its union members and contractors, and

the Carpenters Union thus is committed to providing

its members and signatory contractors a strong

competitive advantage in the industry.

Amicus Service Employees International Union

(“SEIU”) is a union of approximately two million men

and women. SEIU members work in a wide range

of private-sector industries including healthcare,

childcare, homecare, air travel, security, adjunct

teaching faculty, and food, janitorial, and building

1 Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in full and that no one

other than amici or their counsel made a monetary contribution

intended to fund its preparation or submission. Pursuant to Rule

37.3(a), counsel represent that all parties have consented to the

filing of this brief.

2

services. SEIU members include doctors, nursing

professionals, and other essential workers who cared

for the sick during the recent pandemic.

Like respondent Teamsters Union, Local No. 174

(“Local 174” or “Union”), amici Carpenters Union and

SEIU have a statutory right to strike or picket when

an employer declines to enter or renew a reasonable

collective-bargaining agreement, pursuant to Section

7 of the National Labor Relations Act (“NLRA”),

29 U.S.C. § 157. That right is crucial for leveling

the playing field for viable labor relations between

employers and employees. As Congress found in

1935 when enacting the NLRA:

The inequality of bargaining power between

employees who do not possess full freedom of

association or actual liberty of contract, and

employers who are organized in the corporate

or other forms of ownership association substantially burdens and affects the flow of commerce,

and tends to aggravate recurrent business

depressions, by depressing wage rates and the

purchasing power of wage earners in industry

and by preventing the stabilization of competitive

wage rates and working conditions within and

between industries.

Experience has proved that protection by law of

the right of employees to organize and bargain

collectively safeguards commerce from injury,

impairment, or interruption, and promotes the

flow of commerce by removing certain recognized

sources of industrial strife and unrest, by

encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of

differences as to wages, hours, or other working

3

conditions, and by restoring equality of bargaining power between employers and employees.

Id. § 151, ¶¶ 2-3 (“Findings and declaration of policy”).

The same concerns persist today, particularly with

rising and ongoing inflation that reduces the value of

wages and benefits. Ongoing vigilance is required to

maintain any “equality of bargaining power between

employers and employees.” Id. ¶ 3.

In San Diego Millmen’s Union v. Garmon, 359 U.S.

236 (1959), this Court held that the NLRA requires a

labor dispute to be presented to the National Labor

Relations Board (“NLRB” or “Board”) in the first

instance under the Board’s primary jurisdiction, so

long as the union’s conduct is “arguably” protected

by NLRA § 7. Id. at 246. That rule long has served

to protect the rights of labor employees to bargain

collectively and to strike lawfully in seeking better

pay, benefits, and working conditions, and to avoid

myriad inconsistent state-court adjudications at odds

with the NLRA.

The Carpenters Union and SEIU respectfully seek

to avoid the unwarranted limitation on Garmon

and the NLRB’s primary jurisdiction sought here

by petitioner, based on the erroneous assertion that a

mere strategic allegation by an employer of damage

from a strike to perishable goods in ongoing production automatically ousts the Board’s primary jurisdiction.

4

INTRODUCTION

Petitioner Glacier Northwest, Inc. (“Glacier”) seeks

a severe, artificial, and unwarranted limitation of

Garmon whereby any employer able to allege some

damage to ongoing production of company products

from a union strike automatically could oust primary

jurisdiction from the NLRB. This Court should reject

such a facile and categorical evasion of Garmon’s

assignment of primary jurisdiction to the Board for

union conduct that arguably is protected by NLRA

§ 7.

This case concerns the means by which a lawful

strike was carried out by concrete-truck drivers of

respondent Local 174. Although Glacier and its

amici repeatedly assert “intentional destruction of

property” by the Union, they rely on inapposite

precedents far afield from the facts of this case.

Those cases concern extensive destruction or serious

threats to steel plants through egregious conduct

such as timing a strike when molten lead must be

poured off, thus imperiling the entire plant plus

grievous bodily injury to those left to deal with the

molten lead; a week-long employee seizure of a steel

plant resulting in a pitched eviction battle with law

enforcement; threats or acts of violence to person or

property of non-picketing employees; or inserting a

metal tool in the oil tank of a crane and puncturing

its tires. While such conduct clearly is unprotected

by NLRA § 7, the conduct at issue here is markedly

different.

The facts here concern a perishable product –

mixed concrete – Glacier makes and delivers every

day of the working week. After expiration of the

collective-bargaining agreement on July 31, 2017,

and the ensuing lack of a new agreement, the Union

5

called a strike for 7 a.m. on August 11. Even so, the

Union instructed its drivers thereafter to return to

Glacier’s yard and leave their trucks running so no

concrete would harden in the mixing drums. The

drivers did not abandon their trucks offsite, and

they left the drums turning upon return to Glacier’s

concrete-mixing yard. As a result, Glacier’s other

personnel were able in five hours to unload the concrete with no damage to a single truck, and Glacier

limits its state-court complaint to damages from

its perishable-concrete product. The value of that

product represents but a few hours of its lawyers’

time litigating in this Court.

In multiple cases, the NLRB has found such strikes

lawful even when they imperiled or damaged perishable products including cheese, milk, chickens, baked

goods, and perishable leather, because a strike in

many if not all cases will affect ongoing product

production. The NLRA does not require advance

notice of a strike, with a lone exception for healthcare unions. This Court has held striking workers

may exert substantial economic pressure on their

employer in bargaining for pay, benefits, and working conditions.

Consistent with those established principles – and

following investigation of Local 174’s unfair-laborpractice charge – the NLRB’s General Counsel filed a

complaint against Glacier now set for hearing before

an Administrative Law Judge on January 24, 2023 –

two weeks after the January 10 oral argument

scheduled here. If, for that reason, the Court does

not dismiss the writ of certiorari as improvidently

granted, then it should hold the Board has primary

jurisdiction and reject Glacier’s attempted categorical

evasion of Garmon by strategic allegation of damage

to perishable products in production during a strike.

6

STATEMENT

The collective-bargaining agreement between Glacier and Local 174 expired on July 31, 2017, with no

replacement. JA112. Eleven days later, “[u]nhappy

with the company’s response to its bargaining

demands,” the Union called a strike at 7 a.m. on

August 11. Glacier Br. 7-8.

According to a sworn declaration by Glacier’s Dispatch Coordinator, the Local 174 drivers are not told

by Glacier what assignments, or how many assignments, they will have on a given day: “Our drivers

are not given their delivery assignments each day

until they pull under the batch plant . . . because the

work fluctuates greatly every day. We can’t predict

each driver’s work day when it begins.” JA76.

In contrast to such normally unpredictable workdays, Glacier does provide advance notice when

the scheduled task is a massive “mat pour” for a

commercial concrete slab that requires all hands on

deck from multiple trades and police officers to direct

traffic. JA78 (“[W]e notified our drivers 1–3 weeks

in advance of the originally scheduled August 12,

2017 mat pour . . . posted in the Drivers’ Room.”).

The Union first planned the strike for August 12, but

then moved it to August 11 to avoid the greater harm

from a strike on a mat-pour day. JA142-43 & nn.4-5.

Glacier’s Dispatch Coordinator acknowledged “our

Dispatchers learned shortly before 7:00 a.m. that the

Union had called a strike.” JA76. The Union did not

delay in clearly communicating the strike to Glacier.

At the same time, the Union instructed drivers to

continue working even after 7 a.m. to return trucks

to the Glacier yard rather than abandoning them

offsite and to leave mixers running to avoid concrete

hardening. Glacier Br. 8; JA72-73.

7

Return of the trucks took until 7:45 a.m. JA77.

Of the approximately 85 Union drivers in Glacier’s

employ, see JA71 (Glacier: “We have 80-90 drivers

covered by our contract with Teamsters Local 174.”),

only 16 (19%) returned to the yard with unpoured

concrete – and all left their mixers running. JA72-73.

Seven drivers told Glacier managers their trucks

were still full, whereas the remaining nine drivers

allegedly did not. Nevertheless, Glacier’s Production

Manager of 34 years stated in a sworn declaration

that he knew as soon as the strike was called at

7 a.m. that trucks were returning to the yard with

unpoured concrete: “I became aware that our Teamsters 174 ready-mix drivers were going on strike at

7:00 a.m. on August 11, 2017, as soon as the strike

began. . . . I was informed that the Union leaders . . .

were at our yard and that our drivers were all bringing their trucks back to our yard – many with full

loads of concrete in the drums. . . . I also saw that a

number of our mixer trucks were brought back to our

yard with full loads of concrete in them.” JA81-82.

As a result, Glacier’s other personnel successfully

poured out all 16 trucks in five hours with no damage

to any truck; as Glacier notes, “add[ing] a retardant”

delays concrete hardening. JA72-73, 84; Glacier

Br. 9. Glacier’s complaint accordingly is limited to

damages from perishable concrete, including “lost

profits” and costs of containment, but it does not

seek damages for harm to any truck. JA20-22, ¶ 4.7

(Count I), ¶ 4.14 (Count II), ¶ 4.18 (Count III).

Glacier issued letters of discipline to all 16 drivers,

which it later rescinded for the seven drivers who

reported their trucks still full. JA72-73. Although

Glacier does not quantify its damages, industry data

indicate that a 10-yard truck of concrete delivered in

8

Seattle had a retail value in 2017 of approximately

$130 per yard, or $1,300 per truck.2

Glacier’s

damages for the loss of its concrete and lost profits

on the sales thus appear to be approximately $11,700

for the nine trucks for which the drivers were

disciplined. At the same time, Glacier’s ultimate

parent company reported some $8.2 billion in annual

revenues and $9.6 billion in assets.3

After the Washington Supreme Court issued its

decision, the NLRB’s General Counsel issued a

complaint against Glacier for unfair labor practices

related to the August 11, 2017 strike. See U.S. Br.

App. 1a-7a. A hearing on the NLRB complaint is

scheduled for January 24, 2023. See Glacier Br. 13.

SUMMARY OF ARGUMENT

I. Glacier asserts a novel and unwarranted

limitation of Garmon by excluding from the NLRB’s

primary jurisdiction any case in which an employer

can plausibly allege under state law some sort of

“intentional destruction of property” – phrasing that

appears in various iterations at least 80 times in

Glacier’s brief. Such an unprecedented new boundary

line against Board review is contrary to decades of

Board precedent and should be soundly rejected.

A. The property at issue in Glacier’s complaint

is not plant facilities but rather a perishable product

in daily production – mixed concrete. In various

contexts including cheese, milk, baking, chickens, and

2 See JA72 (claiming 9-10 yards per truck); https://concrete.pro

matcher.com/cost/seattle-wa-concrete-costs-prices.aspx (range of

$119.28-$133.54 per cubic yard delivered in July 2018).

3 See Taiheiyo Cement Corp., Annual Report April 1, 2017March 31, 2018, at https://www.taiheiyo-cement.co.jp/english/ir/

annualreport.html; Glacier Br. ii (Taiheiyo owns CalPortland,

which owns Glacier).

9

leather skins, the Board has upheld strikes as lawful

under NLRA § 7 even when perishable products were

damaged or put at risk. Glacier’s petition seeks sub

silentio to undermine that established line of cases.

B. The three inapposite cases on which Glacier

primarily relies concerned highly egregious conduct

targeted to cause maximum damage to an employer’s

capital plant facilities. Two concerned steel plants

containing molten lead and ovens operated at 1,600

degrees Fahrenheit, where a strike posed grave risk

to persons and plant facilities (Marshall Car Wheel

and Joliet Coke Works); the third concerned a weeklong takeover of a steel plant ended only by a

“pitched battle” with the evicting sheriff (Fansteel ).

In contrast, the facts here concern a strike by

mixed-concrete truck drivers who acted carefully to

protect Glacier’s concrete-mixing trucks, and that

concerned only loss of a perishable product similar

to many strikes the Board has found lawful. Such

conduct arguably is protected under NLRA § 7 and

subject to the Board’s primary jurisdiction under

Garmon, as the state supreme court correctly concluded.

C. The artificial line sought to be drawn by Glacier

based on “intentional destruction of property” would

undermine the Board’s precedents on perishable

products by the simple artifice of pleading some

damage to such products in ongoing daily production.

Glacier’s purported line-drawing is also illusory. It

seeks to distinguish “intentional destruction of property from the ordinary economic harms such as lost

profits and other inefficiencies that typically result

from a work stoppage,” Br. 11, yet the damages it

seeks from loss of perishable concrete are no different

from the lost profits and economic harms it candidly

admits are not recoverable from a strike.

10

II.A. Glacier’s asserted line-drawing based on

alleged “intentional” destruction of any sort of

employer property, including perishable products in

daily production, is further contrary to the lack of

any statutory requirement for unions (aside from

those in healthcare) to provide advance notice of a

strike. Glacier’s position in effect would require

advance notice of a strike anytime an employer’s

products in production were affected, which is

contrary to the NLRA statutory scheme and Board

precedent.

B. Further, unions are allowed under the NLRA

to time a strike in a way that puts strong economic

pressure on the employer to agree to acceptable

terms in the collective-bargaining process. Glacier’s

position would undermine those long-established

principles of collective bargaining under the NLRA.

III.A. Based on subsequent development and clarifications in merits briefing that allow the relevant

facts and Board precedents on perishable products

to be more clearly appreciated, together with the

complete inappositeness of the Marshall Car Wheel

line of cases, the writ of certiorari was improvidently

granted and should be dismissed.

B. Glacier will not be prejudiced by Board adjudication because it may appeal any adverse decision to

the court of appeals, and, if the Board finds favorably

for Glacier that the Union strike conduct was unprotected, Glacier may proceed in state court.

C. The Court should reject the assertion by Glacier

(and its acquiescence by the United States) that, in

considering Garmon preemption, the Court is bound

by a state-court rule on motions to dismiss limiting

review to the allegations in the employer’s complaint

and viewing all facts most favorably for the employer.

11

Under Garmon, the Court should consider all relevant

facts the Board might consider, and, as the United

States properly asserts, that fuller record plainly

shows the Union strike conduct arguably is protected

under NLRA § 7.

ARGUMENT

I. GLACIER’S CONCOCTED “PROPERTY DESTRUCTION” STANDARD IS CONTRARY TO

GARMON AND WRONGLY WOULD ERODE

THE BOARD’S PRIMARY JURISDICTION

A. The Board Regularly Has Found Strikes

To Be Protected Conduct Even When They

Imperil Or Damage Perishable Goods

Under Garmon, the Board has primary jurisdiction

over claims based on conduct that “arguably” is protected by NLRA § 7. 359 U.S. at 246; see also Sears,

Roebuck v. San Diego Carpenters, 436 U.S. 180, 202

(1978) (“The primary-jurisdiction rationale unquestionably requires that when the same controversy

may be presented to the state court or the NLRB, it

must be presented to the Board.”).

Because the Board regularly has found strikes protected even when they damage or imperil perishable

goods, the strike at issue “arguably” is protected by

the NLRA. Therefore, the Board has primary jurisdiction over Local 174’s conduct.

Glacier’s state-law claim for damages is limited to

its loss of concrete and consequential cleanup costs.

JA20-22 (¶¶ 4.7, 4.14, 4.18). Glacier admits, and the

decision below held, no trucks were damaged. See

Glacier Br. 9 (“Glacier managed to avoid damage to

its trucks”); JA142 (“None of the trucks carrying the

concrete were damaged because Glacier was able to

take the concrete out of the trucks before it hardened.”).

Glacier admits “[c]oncrete is a highly perishable prod-

12

uct” it produces each day and “cannot be saved for

another day.” JA8; see Glacier Br. 7.

The Board repeatedly has found that such consequential loss of an employer’s perishable goods does

not render a strike unprotected, so long as it was in

pursuit of legitimate economic aims such as better

pay, benefits, or working conditions.

Cheese. In Leprino Cheese, the Board held employees of a cheese manufacturer engaged in a protected

walkout to protest work hours on Christmas day,

even though it “interfered with timed procedures

necessary to complete cheese-processing, resulting

in deficiency in some of the processed product.” 170

N.L.R.B. 601, 606 (1968), enf ’d, 424 F.2d 184 (10th

Cir. 1970). “The Company received some 217,000

‘pounds’ of milk during the day on December 25,

much of it prior to the departure of [the striking

employees] from the plant. As of the time they left,

a considerable portion was in various stages of

conversion into cheese. Once begun, the process is

a continuous one, requiring the addition of bacteria,

cooking, cooling, and timing of various of the procedures. Failure to complete them with proper timing

can result in a spoiled or deficient product.” Id. at

604.

The Board nevertheless held such “[e]conomic loss,

both to employers and striking employees, is often

a byproduct of labor disputes” and the employees’

right to strike “in pursuit of legitimate aims does

not depend on whether they protect their employer

against consequential loss in the quality or price of

his product.” Id. at 606-07.

In NLRB v. A. Lasaponara & Sons, the union

struck on Palm Sunday, “customarily a work day for

the Company since it falls one week before Easter

13

Sunday and the Easter season is one of the busiest of

the year in the cheese industry.” 541 F.2d 992, 997

(2d Cir. 1976). The court enforced the Board’s order

finding that firing the striking employees was an

unfair labor practice because, “[w]hile the strike

undoubtedly brought inconvenience and economic

loss to the Company in view of its unusually heavy

production schedule due to the Easter season, such a

result is obviously the very object of any concerted

employee action protected by the Act.” Id. at 998.

Chickens. In Lumbee Farms, the Board upheld a

poultry processing plant walkout by 100 employees

at 8 a.m., “chosen because by that time all employees

would have reported to work and [the employer]

would be in full operation with its largest number of

chickens on the line”; the plant in fact “sustained

some loss of its product on the line when the strike

occurred.” 285 N.L.R.B. 497, 503, 506 (1987), enf ’d,

1988 WL 68378 (4th Cir. June 28, 1988) (per curiam)

(judgment noted at 850 F.2d 689 (table)). As the

Board reasoned: “that the strike occurred during the

workday when chickens were on the line and vulnerable to loss does not mean employees automatically

lost protection under the Act.” Id. at 506. “The

economic pressure flowing from such a strike must

be weighed against the goals sought to be achieved

by the strikers” who had “legitimate concerns regarding their working conditions and pay.” Id.

Similarly, in Ablon Poultry & Egg, the Board held

a poultry plant unlawfully had terminated an

employee who led a walkout that “had resulted

in some spoilage because of delay in processing.” 134

N.L.R.B. 827, 829 (1961). Despite the loss of perishable goods, the walkout was protected because it was

“in protest against existing working conditions.” Id.

14

Baking.

In Barkus Bakery, the Board found

employee conversations about striking were protected even though a strike would result in “spoilage of

products in process of baking.” 214 N.L.R.B. 478,

480 (1974), enf ’d, 517 F.2d 1397 (3d Cir. 1975).

In M&M Bakeries, the Board similarly found a

strike protected over the complaint of the baking

company that the strike “began at midnight, November 25,” when the company “had planned on ‘double

production’ on November 26, in view of the fact that

November 28 was Thanksgiving,” such “that the

strike ‘was called for a time when it would do most

damage to the Company.’ ” 121 N.L.R.B. 1596, 1605

(1958), enf ’d, 271 F.2d 602 (1st Cir. 1959).

Milk. In Central Oklahoma Milk Producers, the

Board found that a milk-processing company unlawfully had discharged a group of milk truck drivers

who refused to make deliveries until they received

better wages and hours. See 125 N.L.R.B. 419, 43536 (1959), enf ’d, 285 F.2d 495 (10th Cir. 1960).

Perishable leather. In Morris Fishman & Sons, the

Board found a strike at a leather company was protected even though the timing jeopardized $15,000

worth of perishable leather skins.4 See 122 N.L.R.B.

1436, 1445-46 (1959), enf ’d, 278 F.2d 792 (3d Cir.

1960). The Board distinguished between “property[ ]

which might have been lost because of its perishable

nature” and cases involving the possibility of “considerable damage to both plant and equipment and . . . a

plant shutdown for consequent repairs.” Id. at 1447.

This case. Here, the Union drivers’ strike was

based on a legitimate bargaining interest and damaged

4 $15,000 in 1959 is equivalent to about $145,000 in today’s

dollars. See https://www.dollartimes.com/inflation/.

15

no Glacier facilities. The drivers stopped work in

support of Union demands during negotiations for

a successor collective-bargaining agreement. JA112.

As Glacier admits (at 7), the drivers were “[u]nhappy

with the company’s response to [the Union’s] bargaining demands.” The loss of perishable concrete does

not render the strike unprotected.

As the Board repeatedly has explained, economic

loss is a common byproduct of labor disputes, and

the drivers’ right to strike “in pursuit of legitimate

aims does not depend on whether they protect their

employer against consequential loss in the quality

or price of his product.” Leprino, 170 N.L.R.B. at

606-07. Under longstanding Board precedent, the

strike “arguably” is protected conduct even though

perishable concrete was lost. The Board has primary

jurisdiction to adjudicate the conduct of the striking

drivers – just as the regional director concluded

when issuing the Board complaint against Glacier.

B. Glacier Ignores The Distinction Between

Incidental Damage To Perishable Goods

And Serious Damage To Plant Facilities

1. Glacier relies on a trio of cases involving

egregious conduct that are entirely inapposite to the

incidental damage to perishable concrete at issue

here.

In NLRB v. Marshall Car Wheel, 218 F.2d 409 (5th

Cir. 1955) (cited in Glacier Br. 10, 20, 21, 22, 31),

employees of an iron foundry “intentionally chose a

time for their walkout when molten iron in the plant

cupola was ready to be poured off,” threatening

“substantial” harm because, when the cupola is “full

of molten metal[,] [it] must be emptied immediately

or severe damage to plant and equipment will

result.” Id. at 411 & n.3. Thus, if the cupola were

16

not emptied quickly, then molten iron would “come

off the cupola and run off down the sides [of ] the railroad tracks,” burn the wooden structure supporting

the cupola, and “run everybody out of there.” Id. at

413 n.7. As a result, “the plant would have been out

of operation for a period of several months” and the

employer would have suffered “substantial property

damage” to its plant facilities. Id. at 411, 414 n.9.

In U.S. Steel Co. (Joliet Coke Works) v. NLRB,

196 F.2d 459 (7th Cir. 1952) (cited in Glacier Br. 21),

a steel-plant strike threatened “crippling damage”

from cooling of ovens kept at 1,600 degrees Fahrenheit, including “danger and loss from explosion and

fire.” Id. at 461, 463. A strike at the same plant

in 1919 had caused “damage . . . so great that the

ovens had to be rebuilt at a cost of $2,000,000, and

the rebuilding took three years.” Id. at 461.5

In NLRB v. Fansteel Metallurgical, 306 U.S. 240

(1939) (cited in Glacier Br. 19, 20, 21, 24, 34, 35, 37,

43, 44), steel-plant employees staged a “sit-down

strike” seizing “key” buildings and shutting down

operations for more than a week. Id. at 248-49. The

strikers ignored a court injunction ordering them to

leave and engaged in a “pitched battle” to “resist[ ]

the attempt by the sheriff to evict and arrest them”;

most were arrested and received jail sentences. Id.

at 249. “The employees had the right to strike but

they had no license to commit acts of violence or to

seize their employer’s plant.” Id. at 253.

2. In its perishable-products line of cases, the

Board readily and properly has distinguished the

Marshall Car Wheel line of cases.

5 $2 million in 1919 is equivalent to nearly $34 million in

today’s dollars. See https://www.dollartimes.com/inflation/.

17

In Oklahoma Milk, the Board rejected applicability

of Marshall Car Wheel because “[n]o unusual circumstance, such as aggravated injury to personnel or

premises, was created by the fact that the milk

handled is perishable and loss might be sustained;

loss is not uncommon when a strike occurs.” 125

N.L.R.B. at 435 (footnote omitted).

In Leprino, the Board reasoned that loss of perishable cheese was “far different” from Marshall Car

Wheel and cases “involving a danger of ‘aggravated’

injury to persons or premises.” 170 N.L.R.B. at 607.

In Morris Fishman, the Board reasoned that “[t]he

material element in [Marshall Car Wheel and other]

cases is the threat of aggravated physical injury to

plant premises, an element not present in the instant

case.” 122 N.L.R.B. at 1447 (emphasis added; footnote omitted).

In Lumbee, the Board reasoned that, “[a]side from

stopping work[,] the employees here did nothing

affirmatively to cause physical damage to” plant

facilities. 285 N.L.R.B. at 507.

In Lasaponara, a strike on the busiest day of

the year “clearly failed to reach a degree so grossly

disproportionate to the goal sought to be achieved

that it renders the conduct unprotected.” 541 F.2d

at 998 (distinguishing Marshall Car Wheel ). The

“employees’ conduct . . . was not simply an attempt to

deliberately inflict economic harm on the Company

without compensatory gain to themselves. It served

a legitimate work-related goal and was therefore

protected by the Act.” Id. The same is true here.

3. The Washington Supreme Court’s decision,

notwithstanding Glacier’s extensive derision of it,

is fully consistent with those Board and court of

18

appeals precedents concerning perishable products.

JA150-70. In sum, the court properly reasoned:

(1) employees must take reasonable precautions

to protect an employer’s plant, property, and

products and (2) economic harm may be inflicted

through a strike as a legitimate bargaining

tactic. Because it is unclear where the strike

in this case falls on the spectrum between these

two principles, the strike is, at least, arguably

protected conduct under section 7.

JA160; see JA160-66. That reasoning is correct.

Similarly, “incidental destruction of products

during a strike, as opposed to property damage for its

own sake, has not been sufficient to invoke the ‘local

feeling’ exception in any United States Supreme

Court case.” JA158. That “exception” is inapplicable

to conduct arguably protected by § 7 because “a

presumption of federal pre-emption applies even

when the state law regulates conduct only arguably

protected by federal law”; and for conduct held to

be “actually protected,” “pre-emption follows . . . as

a matter of substantive right” under the Supremacy

Clause. Brown v. Hotel Emps., 468 U.S. 491, 502-03

(1984); see U.S. Br. 28-29 (under the “local feeling”

exception, States may provide additional remedies

for conduct clearly prohibited by § 8, but States may

not impose liability for conduct protected by § 7).

4. The other cases relied on by Glacier and its

amici are even more inapposite. For example, in

United Mine Workers v. Laburnum Construction, 347

U.S. 656 (1954) (cited in Glacier Br. 15, 23, 24, 25,

26, 27, 35, 38, 39, 40, 43, 44, 47), the union allegedly

“threatened and intimidated [the employer’s] officers

and employees with violence to such a degree that

[the employer] was compelled to abandon . . . its

19

projects.” Id. at 658. No such conduct is at issue

here, which concerned a purely peaceful and lawful

strike.

In Rockford Redi-Mix v. Teamsters Local 325,

551 N.E.2d 1333 (Ill. App. Ct. 1990) (cited in Glacier

Br. 28), drivers abandoned concrete trucks in secret

offsite locations, “letting the cement sit in the drums

without turning.” Id. at 1340. As Glacier admits

(Br. 8; JA72-73, 76-77), here the drivers carefully

avoided such harm by returning their trucks and

leaving them running to avoid hardening.

In Cranshaw Construction v. Ironworkers, 891 F.

Supp. 666 (D. Mass. 1995) (cited in Buckeye Amicus

Br. 12, 17), an “ironworker’s tool” was inserted “in

the crane’s oil tank” and its “tires . . . were drilled.”

Id. at 675. No such egregious property vandalism is

at issue here.

In Lodge 76 Machinists v. Wisconsin Employment

Commission, 427 U.S. 132 (1976) (cited in Glacier

Br. 15, 23, 25, 37, 38, 39, 43), this Court in fact found

the union conduct to be arguably protected under

Garmon. See id. at 154 (“It is not contended, and

on the record could not be contended, that the

Union policy against overtime work was enforced

by violence or threats of intimidation or injury to

property.”).

“Breath spent repeating dicta does not infuse it

with life.” Metropolitan Stevedore v. Rambo, 515

U.S. 291, 300 (1995). A similar conclusion follows

from the repeated citations by Glacier and its amici

to cases that incidentally may mention “property

damage” or concern egregious threats of violence to

property, but that factually are entirely inapposite to

the perishable-concrete labor strike at issue here.

20

5. It is undisputed the Union strike involved no

aggravated injury to Glacier’s facilities or personnel.

Glacier admits (at 9) it “managed to avoid damage

to its trucks” precisely because the drivers returned

their loaded trucks to Glacier’s yard after the strike

was called and before they stopped working, rather

than leaving the trucks unattended offsite or shutting down their mixers. JA72-73, 76-78.

Further, the Union moved its original strike date

to avoid the pre-announced August 12 mat pour.

Although Glacier complains it nevertheless timed the

August 11 strike at an especially inopportune time

on a typical workday, Glacier’s own Dispatch Coordinator stated Glacier does not tell drivers in advance

how any given day will proceed, JA76, and its

Production Manager stated he knew the returning

trucks had unpoured concrete as soon as they

re-entered the yard, JA81. See supra pp. 6-8.

Glacier’s self-serving rhetoric in its complaint

asserts “heroic efforts” to dispose of the concrete,

which included hiring trucks to haul concrete offsite.

Br. 9. But the Board has found strikes to be protected conduct even when employers had to make special

efforts to avoid economic loss from perishable products. In Morris Fishman, the Board found the strike

protected even when the employer had to “specially

hire[ ]” a team to work all night to save perishable

leather skins. 122 N.L.R.B. at 1445-46. And in

Oklahoma Milk, the Board found a truck-driver

strike protected even though the employer “had to

take action to get the milk to market” and “[s]uch

action was readily and promptly taken.” 125 N.L.R.B.

at 435.

This case easily falls under the Board’s precedent

concerning acceptable consequential loss of an

employer’s perishable goods, rather than cases

21

such as Marshall Car Wheel involving “aggravated”

damage to an employer’s equipment, facilities, or

personnel.

C. Glacier’s “Intentional Destruction Of

Property” Tagline Is Unlawful And Unworkable

Glacier erroneously proposes a line supplanting the

Board’s primary jurisdiction based on any alleged

“intentional destruction of property.” That elastic

standard would allow complete evasion of the factually nuanced decisions by the Board on perishable

goods, by the simple artifice of pleading some damage

to perishable products in ongoing daily production.

Nothing in the NLRA or precedent warrants such a

radical change ousting perishable-goods cases long

heard by the Board under its primary jurisdiction

and consigning them instead to state court.

Even on its own terms, Glacier’s line is discordantly

malleable. Glacier complains the decision below

erred by not “distinguishing the intentional destruction of property from the ordinary economic harms

such as lost profits and other inefficiencies that

typically result from a work stoppage.” Br. 11;

see Br. 15, 30, 44 (same distinction). Yet Glacier

concedes “the Act protects ordinary strikes that may

result in lost profits and economic opportunities.”

Br. 44 (emphases added). At the same time, Glacier’s

complaint repeatedly seeks “lost profits.” JA14-15,

19-22.

The loss of perishable concrete Glacier intended to

sell falls into Glacier’s own protected category of “lost

profits and economic opportunities.” Yet the line it

seeks to draw would supplant the Board’s primary

jurisdiction to consider such admittedly protected

conduct. The logic of Glacier’s tagline is thus at odds

22

with the bottom-line result it seeks, which should be

rejected.6

II. THE NLRA DOES NOT REQUIRE ADVANCE

NOTICE OF A STRIKE AND IT ALLOWS

STRONG ECONOMIC PRESSURE BY A

UNION FOR BETTER PAY, BENEFITS,

AND WORKING CONDITIONS

A. The NLRA Does Not Require Advance

Notice Of A Strike And States May Not

Indirectly Require Such Advance Notice

Glacier does not contend the Union drivers were

precluded from striking, but asserts they had to

avoid any risk to its perishable concrete in production every workday. Glacier thus advances a novel

rule that employees must provide advance notice of a

strike whenever a perishable product produced each

workday is in production.

1. Such advance notice is not a requirement of the

NLRA. Only healthcare unions must give advance

notice. See NLRA § 8(g), 29 U.S.C. § 158(g) (10 days).

That limited exception shows Congress intended to

allow strikes without notice in other industries. See

Jama v. ICE, 543 U.S. 335, 341 (2005) (“We do not

lightly assume that Congress has omitted from its

adopted text requirements that it nonetheless intend

to apply, and our reluctance is even greater when

Congress has shown elsewhere in the same statute

6 At oral argument below, Glacier conceded “a grocery store

employee walkout that resulted in the foreseeable loss of

perishable fish . . . might be protected activity because it merely

caused ‘production loss’ rather than being intentionally timed to

cause the concrete loss.” JA166 n.9 (quoting Glacier’s counsel).

That concession further shows Glacier’s line is elusive and

unworkable, and “highlights why factual distinctions should be

drawn by the Board and not by state courts.” Id.

23

that it knows how to make such a requirement

manifest.”).

Importantly, in NLRA § 7, Congress “expressly

safeguarded for employees” the “ ‘right to engage

in concerted activities for the purpose of collective

bargaining or other mutual aid or protection,’ e.g., to

strike.” Motor Coach Emps. v. Wisconsin Emp’t Bd.,

340 U.S. 383, 389 (1951) (quoting 29 U.S.C. § 157)

(cleaned up). The right to strike is crucial to the

collective-bargaining process and allows a union to

time a strike to apply substantial economic pressure.

It promotes Congress’s policy to achieve “equality

of bargaining power between employers and employees.” 29 U.S.C. § 151, ¶ 3.

Further, NLRA § 13 expressly preserves “the right

to strike,” with no qualification requiring advance

notice for strikes affecting perishable products:

Nothing in this subchapter, except as specifically provided for herein, shall be construed so

as either to interfere with or impede or diminish

in any way the right to strike, or to affect the

limitations or qualifications on that right.

Id. § 163; see id. § 142(2) (defining “strike” to encompass a “concerted stoppage of work by employees

(including a stoppage by reason of the expiration of a

collective-bargaining agreement)”).

In all events, “[t]he economic strike against the

employer is the ultimate weapon in labor’s arsenal

for achieving agreement upon its terms.” NLRB v.

Allis-Chalmers Mfg., 388 U.S. 175, 181 (1967).

2. Although the Local 174 drivers were aware a

strike necessarily would affect perishable concrete,

they demonstrably took reasonable precautions to

protect Glacier’s concrete trucks, which were not

damaged, including moving the strike date to avoid

24

a pre-announced mat pour. It is for the Board to

balance the Union’s statutory right to bargain and

strike in seeking better pay, benefits, and working

conditions, against the incidental loss of perishable

products in daily production.

Intent, to the extent it ever may be relevant, is a

matter for Board adjudication, not artful pleading via

employer rhetoric about “intentional destruction of

property.” As the United States explains: “Glacier’s

focus on the strikers’ intent is misplaced. The whole

point of a strike to secure a collective bargaining

agreement is to threaten the employer with economic

losses in order to pressure it to accept the strikers’

terms. It follows that strikers inherently intend

to cause a degree of economic harm through their

refusal to work.” U.S. Br. 17 (citation omitted).

Indeed, “[a] strike characteristically causes inconvenience and economic loss to the employer. Striking

employees are under no general duty to minimize the

disruption by, for example, notifying the employer

in advance of the strike to enable the employer to

prepare for the strike.” Columbia Portland Cement

v. NLRB, 915 F.2d 253, 257 (6th Cir. 1990) (subsequent history omitted). In Columbia Portland, the

court upheld a Board ruling that a cement-kiln strike

with no advance notice was protected even though

it resulted in “permanent[ ]” kiln damage, because

employees “took reasonable precautions to prevent

equipment damage.” Id. at 255, 258. If even unsuccessful attempts to prevent damage to plant facilities

are protected conduct, then certainly the Board may

conclude the successful prevention measures taken

by Local 174 are protected.

The Carpenters Union – which as noted above

builds forms for concrete pours – is vitally interested

25

in preventing Glacier’s unwarranted attempt to oust

consideration of strikes from the Board to state court

when the employer merely alleges some damage to

perishable concrete. Likewise, Glacier’s approach

is so elastic that any industry involving perishable

products or products that can degrade during normal

storage – from lettuce to carnations to batteries –

would be exempt from the normal operations of the

Board. SEIU members work routinely with such

products and so would be seriously limited in their

ability to strike. Glacier offers no support for such

a widespread circumvention of Congress’s intended

labor-management relations regime.

B. Unions May Strike Without Notice To

Apply Strong Economic Pressure

“The presence of economic weapons in reserve,

and their actual exercise on occasion by the parties,

is part and parcel of the system that [Congress

has] recognized” in promulgating and amending the

NLRA over the years. NLRB v. Insurance Agents,

361 U.S. 477, 489 (1960).

Importantly, “use of economic weapons” and

“economic pressure devices” is permissible “to induce

one party to come to the terms desired by the other.”

Id. The NLRA permits unions, in bargaining collectively, to exert “maximum pressure on the employer

at minimum economic cost to the union” to get better

pay, benefits, and working conditions. Id. at 496.

In Golden State Transit v. Los Angeles, 475 U.S.

608 (1986), taxi drivers timed a strike for the eve of

a crucial city council decision whether to renew

the employer’s taxi franchise. This Court held the

“drivers were entitled to strike – and to time the

strike to coincide with the Council’s decision – in

an attempt to apply pressure on [the employer].”

26

Id. at 615. “There is no question that the Teamsters

. . . employed permissible economic tactics,” and local

governments are “prohibited from imposing additional restrictions on economic weapons of self-help,

such as strikes or lockouts.” Id. at 614-15.7

Similarly, in Dayton Newspapers v. NLRB, 402

F.3d 651 (6th Cir. 2005), the court held a strike

protected even though “timed . . . with an eye toward

maximum impact, because the Sunday paper is [the

employer’s] most profitable of the week.” Id. at 656.

In concrete construction and other industries,

perishable products are produced on an ongoing

basis, and the means of a strike that affects such

products in production should be for the Board to

assess based on a full evidentiary record. The Court

should reject Glacier’s repeated invocation of its

“intentional destruction of property” tagline that

seeks to upset long-established statutory provisions

and precedents to oust the Board from its primary

jurisdiction as designated by Congress by statute in

the NLRA.

III. THE NLRB, UNDER ITS PRIMARY JURISDICTION, FIRST SHOULD ADJUDICATE

THE COMPLAINT AGAINST GLACIER SET

FOR HEARING ON JANUARY 24, 2023

A. The Court Could Dismiss The Writ Of

Certiorari As Improvidently Granted

This case presents facts highly disparate from the

dramatic damages to steel plants or their seizure by

7 Glacier could have locked out the Union drivers but it did

not, thus electing to risk a lawful strike without advance notice.

See Golden State, 475 U.S. at 615 (“at bargaining impasse

employer may use lockout solely to bring economic pressure on

union”) (citing American Ship Bldg. v. NLRB, 380 U.S. 300, 318

(1965)).

27

striking employees implicated in the cases primarily

relied upon by Glacier. Rather, the Union drivers’

conduct shows clear and careful measures to protect

Glacier’s trucks and is protected under decades of

Board and court precedent. See supra pp. 6-8.

Indeed, the Board’s General Counsel filed a

complaint against Glacier now set for hearing on

January 24, 2023, soon after argument in this Court.

See supra p. 8. Based on the process for such

complaints, the regional director first investigated

and gathered evidence that Glacier committed unfair

labor practices and the strike is protected conduct

under NLRA § 7. See U.S. Br. 25-27 (discussing

process for investigation and issuance of a complaint);

U.S. Br. App. 1a-7a (NLRB General Counsel complaint

against Glacier); Local 174 Br. 17-19.

As the United States correctly notes: “When

the agency issues a complaint alleging that a given

activity is protected, that allegation, at least in

the absence of exceptional circumstances, establishes

that the activity was at least arguably protected –

meaning that state courts may not resolve claims

concerning that activity.” U.S. Br. 26; see Davis

Supermarkets v. NLRB, 2 F.3d 1162, 1179 (D.C. Cir.

1993) (finding Garmon “preemption is triggered by

the issuance of a complaint by the General Counsel,

if not earlier”).

Further, the state courts could not consider the

effect of the NLRB General Counsel’s complaint

because it was issued only after the Washington

Supreme Court issued the decision under review.

See U.S. Br. 28 (“[I]n our view the agency complaint

should establish that the truck drivers’ conduct was

at least arguably protected. But because this Court

is a ‘court of review, not of first view,’ it should allow

28

the state courts to consider the agency complaint in

the first instance on remand.”) (citation omitted).

At this stage of the case, therefore, it is clear the

petition did not warrant a grant of certiorari. This

Court at times has dismissed writs as improvidently

granted after merits briefing or oral argument, once

the issues become better crystallized and the Court is

able to focus more on the particulars of the case than

at the certiorari stage. “Examination of a case on

the merits, on oral argument, may bring into proper

focus a consideration which, though present in the

record at the time of granting the writ, only later

indicates that the grant was improvident.” The

Monrosa v. Carbon Black Exp., 359 U.S. 180, 184

(1959) (internal quotations omitted). This is one of

the relatively rare cases in which the writ could be

dismissed as improvidently granted.

Deciding the issue presented by Glacier at this

stage threatens to incite completely unnecessary litigation over previously well-established law on when

the Board has primary jurisdiction, when incidental

damage to perishable products can give rise to

damages, and on what sequence labor-management

cases should proceed. Glacier offers no good reason

to scramble labor law over an $11,700 damages claim.

B. Glacier Will Not Be Prejudiced By The

Board’s Primary-Jurisdiction Adjudication

If the Board finds the conduct underlying the

strike to be protected, then Glacier may appeal to a

federal court of appeals. See 29 U.S.C. § 160(f ). And

if the Board finds the Union conduct unprotected,

then, subject to any appeal rights the Union might

exercise, Glacier may pursue a state-law damages

claim. See Longshoremen v. Davis, 476 U.S. 380, 397

(1986) (“[O]nly if the Board decides that the conduct

29

is not protected or prohibited may the court entertain

the [state-court] litigation.”); U.S. Br. 4; Local 174

Br. 1-2. Either way, Glacier is not prejudiced.

C. The Court Should Reject The Artful Pleading Assertion That Review Under Garmon

Is Limited To Allegations In Glacier’s Complaint And Construed In Its Favor

If the Court does proceed to the merits of the

primary-jurisdiction question under Garmon, then it

should reject Glacier’s erroneous assertion (in which

the United States mistakenly acquiesces) that review

should be limited to Glacier’s complaint because the

case procedurally is at the motion-to-dismiss stage.

Indeed, the United States correctly asserts that the

complete record before this Court does show arguably

protected conduct by the Union, such that the Board

adjudication now scheduled should alone proceed.

See U.S. Br. 22-23. On that point, the United States

is plainly correct. See supra pp. 6-8.

Neither Glacier nor the United States cites any

NLRA requirement that primary-jurisdiction analysis must follow a state-law rule governing rulings on

a motion to dismiss by assuming the allegations of

the plaintiff employer to be true, construing all facts

favorable to the employer, and entirely ignoring any

union rebuttal claims. Such a rule would provide

employers with a facile way to evade Board adjudication by pleading claims that strategically omit facts

favorable to the union and leaving the union powerless to provide the rebuttal facts the Board would

consider. Nothing in Garmon compels that skewed

result, and its logic – safeguarding the Board’s primary

jurisdiction against potentially conflicting state-law

decisions – counsels against it.

30

The United States (at 24) cites Longshoremen v.

Davis for the proposition a union must submit

“evidence” to show the conduct arguably is protected,

but Davis was decided after a trial below so any

statements about evidence should be viewed in

that context. Moreover, Davis held a state-court

procedural rule on waiver of affirmative defenses

was unenforceable such that the state court “erred in

declining to address th[e] [union’s Garmon] claim on

the merits.” 476 U.S. at 399. Davis does not support

review based lopsidedly on the employer’s allegations

and favorable inferences only, but rather an evenhanded review of the expected presentations from

both sides to the Board. It calls only for a “factual or

legal showing” of the union’s case for primary jurisdiction under Garmon, id. at 398, which the complete

record here easily contains.

Whether the Court dismisses the writ or proceeds

to resolve the merits of the Garmon question presented, the result should be the same – the Board

should be held to have primary jurisdiction to adjudicate the strike conduct of Local 174 based on the

NLRB General Counsel’s complaint set for hearing in

January 2023.

CONCLUSION

The judgment of the Washington Supreme Court

should be affirmed.

31

Respectfully submitted,

MATTHEW F. CAPECE

UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS

OF AMERICA

101 Constitution Ave., N.W.

Washington, D.C. 20001

(203) 231-0398

BRIAN F. QUINN

SHANLEY, APC

101 Constitution Ave., N.W.

Washington, D.C. 20001

(202) 589-1151

DANIEL M. SHANLEY

SHANLEY, A PROFESSIONAL

CORP.

533 S. Fremont Ave.

9th Floor

Los Angeles, CA 90071

(213) 488-4100

NICOLE G. BERNER

General Counsel

SERVICE EMPLOYEES

INTERNATIONAL UNION

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 730-7383

December 8, 2022

DAVID C. FREDERICK

Counsel of Record

SCOTT K. ATTAWAY

KATHLEEN W. HICKEY*

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

* Admitted only in Massachusetts;

supervised by members of the firm