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

Supreme Court briefDec 8, 2022

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No. 21-1449

IN THE

Supreme Court of the United States

________________

GLACIER NORTHWEST, INC., DBA CALPORTLAND,

Petitioner,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

LOCAL UNION NO. 174,

Respondent.

___________________

On Writ of Certiorari to the

Supreme Court of Washington

___________________

BRIEF OF AMICI CURIAE

ADMINISTRATIVE LAW, CONSTITUTIONAL

LAW, AND FEDERAL COURTS PROFESSORS

SUPPORTING RESPONDENT

___________________

DIANA WINTERS

UCLA SCHOOL OF LAW

385 Charles E. Young

Drive East

Los Angeles, CA 90095

JANET HEROLD

JUSTICE CATALYST LAW

40 Rector Street, 9th Floor

New York, NY 10006

STACEY M. LEYTON

Counsel of Record

JUHYUNG HAROLD LEE

DERIN MCLEOD

ALTSHULER BERZON LLP

177 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151

sleyton@altber.com

Counsel for Amici Curiae

Mosaic - (301) 927-3800 - Cheverly, MD

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6/11/08

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TABLE OF CONTENTS

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................. 1

ARGUMENT ............................................................. 2

I. The Washington Supreme Court correctly determined that Petitioner’s

claims should be reviewed by the Board

in the first instance ........................................ 2

A. The Court’s primary jurisdiction doctrine has long carried out Congress’s

intent for certain regulatory schemes

to be administered uniformly by expert agencies ............................................. 3

B. Garmon’s “arguably protected or prohibited” test is rooted in the same

principles as the primary jurisdiction

doctrine...................................................... 8

C. The Washington Supreme Court’s

decision is driven by the same concerns underlying Garmon and the

primary jurisdiction doctrine as a

whole ....................................................... 15

II.

There is no reason for this Court to

disrupt the careful balance struck by

Garmon and its progeny ......................... 18

CONCLUSION........................................................ 24

APPENDIX A: List of Amici Curiae ....................... 1a

iii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Amalgamated Ass’n of St., Elec. Ry. &

Motor Coach Emps. of Am. v. Lockridge,

403 U.S. 274 (1971) ........................................... 19

Astiana v. Hain Celestial Grp., Inc.,

783 F.3d 753 (9th Cir. 2015) ............................... 8

Benham v. Ozark Materials River Rock,

LLC,

885 F.3d 1267 (10th Cir. 2018) ........................... 8

Bimler v. Stop & Shop Supermarket Co.,

965 F. Supp. 292 (D. Conn. 1997) ..................... 21

Boggs v. Boggs,

520 U.S. 833 (1997) ........................................... 14

Brown v. Hotel & Rest. Emps. & Bartenders

Int’l Union Loc. 54,

468 U.S. 491 (1984) ........................................... 20

Buscemi v. McDonnell Douglas Corp.,

736 F.2d 1348 (9th Cir. 1984) ........................... 21

Carr v. Metals,

351 F. App’x 128 (7th Cir. 2009) ....................... 21

Chicago Mercantile Exch. v. Deaktor,

414 U.S. 113 (1973) ............................................. 7

Chlorine Inst., Inc. v. Soo Line R.R.,

792 F.3d 903 (8th Cir. 2015) ............................... 8

Class v. Ranger Am. Armored Servs., Inc.,

245 F. Supp. 2d 370 (D.P.R. 2003), aff’d

sub nom. Martinez-Class v. Ranger Am.

Armored Servs., Inc., 89 F. App’x 746

(1st Cir. 2004) .................................................... 21

Connell v. U.S. Steel Corp.,

516 F.2d 401 (5th Cir. 1975) ............................. 19

Conservation L. Found., Inc. v. Exxon Mobil

Corp.,

3 F.4th 61 (1st Cir. 2021) .................................... 8

Consol. Rail Corp. v. Grand Trunk W. R.R.

Co.,

607 F. App’x 484 (6th Cir. 2015) ......................... 8

Elliott v. Tulsa Cement, LLC,

357 F. Supp. 3d 1141 (N.D. Okla. 2019) ........... 21

Far East Conference v. United States,

342 U.S. 570 (1952) ................................... passim

Garner v. Teamsters, Chauffeurs & Helpers

Loc. Union No. 776 (A. F. L.),

346 U.S. 485 (1953) ......................................... 8, 9

Guinan v. Dean Foods of Cal., Inc.,

16 F. App’x 627 (9th Cir. 2001) ......................... 21

Int’l Longshoremen’s Ass’n v. Davis,

476 U.S. 380 (1986) ......................... 11, 12, 18, 19

Kolentus v. Avco Corp.,

798 F.2d 949 (7th Cir. 1986) ....................... 23, 24

Larranaga v. Nw. Defs. Ass’n,

4 F. App’x 391 (9th Cir. 2001) ........................... 23

Lumber Prod. Indus. Workers Loc. No. 1054

v. W. Coast Indus. Rels. Ass’n, Inc.,

775 F.2d 1042 (9th Cir. 1985) ........................... 24

Marine Eng’rs Beneficial Ass’n v. Interlake

S.S. Co.,

370 U.S. 173 (1962) ........................................... 10

Moreno v. UtiliQuest, LLC,

29 F.4th 567 (9th Cir. 2022) .............................. 21

Morris v. Chem-Lawn Corp.,

541 F. Supp. 479 (E.D. Mich. 1982) .................. 21

NLRB v. Curtin Matheson Sci., Inc.,

494 U.S. 775 (1990) ........................................... 10

NLRB v. Erie Resistor Corp.,

373 U.S. 221 (1963) ........................................... 10

NLRB v. Loc. Union No. 103, Int’l Ass’n of

Bridge, Structural & Ornamental Iron

Workers,

434 U.S. 335 (1978) ........................................... 10

Pa. Nurses Ass’n v. Pa. State Educ. Ass’n,

90 F.3d 797 (3d Cir. 1996) ................................. 19

Palmer v. Amazon.com, Inc.,

51 F.4th 491 (2d Cir. 2022) ................................. 8

Pattern Makers’ League of N. Am. v. NLRB,

473 U.S. 95 (1985) ............................................. 10

Pharm. Rsch. & Mfrs. of Am. v. Walsh,

538 U.S. 644 (2003) ........................................... 14

Ricci v. Chicago Mercantile Exch.,

409 U.S. 289 (1973) ....................................... 7, 11

Richardson v. Kruchko & Fries,

966 F.2d 153 (4th Cir. 1992) ....................... 19, 20

San Diego Building Trades Council,

Millmen’s Union, Local 2020 v. Garmon,

359 U.S. 236 (1959) ................................... passim

Satterfield v. W. Elec. Co.,

758 F.2d 1252 (8th Cir. 1985) ........................... 21

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

Dist. Council of Carpenters,

436 U.S. 180 (1978) ......................... 11, 12, 13, 18

Sears, Roebuck & Co. v. Solien ex rel.

NLRB,

450 F.2d 353 (8th Cir. 1971) ............................. 19

Senter v. Hughes Aircraft Co.,

53 F.3d 340 (9th Cir. 1995) ............................... 20

United States ex rel. Sheet Metal Workers

Int’l Ass’n, Loc. Union 20 v. Horning

Invs., LLC,

828 F.3d 587 (7th Cir. 2016) ............................... 8

Sierra v. City of Hallandale Beach,

904 F.3d 1343 (11th Cir. 2018) ........................... 8

Smith v. Excel Maint. Servs.,

617 F. Supp. 2d 520 (W.D. Ky. 2008) ................ 21

vii

Smith v. Westlake Vinyls, Inc.,

403 F. Supp. 3d 625 (W.D. Ky. 2019) ................ 21

Texas & Pacific Railway Co. v. Abilene

Cotton Oil Co.,

204 U.S. 426 (1907) ................................... passim

United States Navigation Co. v. Cunard

Steamship Co.,

284 U.S. 474 (1932) ................................... passim

United States v. W. Pac. Ry. Co.,

352 U.S. 59 (1956) ..................................... 7, 9, 12

Veal v. Kerr-McGee Coal Corp.,

682 F. Supp. 957 (S.D. Ill. 1988), aff’d,

885 F.2d 873 (7th Cir. 1989) ............................. 21

Viestenz v. Fleming Cos., Inc.,

681 F.2d 699 (10th Cir. 1982) ........................... 21

Weinberger v. Bentex Pharms., Inc.,

412 U.S. 645 (1973) ............................................. 7

State Cases

Barbieri v. United Techs. Corp.,

771 A.2d 915 (Conn. 2001) .......................... 23, 24

Chavez v. Copper State Rubber of Ariz., Inc.,

897 P.2d 725 (Ariz. Ct. App. 1995) ................... 23

Chung v. McCabe Hamilton & Renny Co.,

Ltd.,

128 P.3d 833 (Haw. 2006) ................................. 23

viii

De Los Santos v. Heldenfels Enters., Inc.,

632 S.W.3d 584 (Tex. Ct. App. 2020) ................ 22

Foreman v. AS Mid-Am., Inc.,

586 N.W.2d 290 (Neb. 1998) ............................. 20

Henry v. Intercontinental Radio, Inc.,

202 Cal. Rptr. 328 (Cal. Ct. App. 1984) ............ 23

Hotel Emps. & Rest. Emps., Loc. 8 v.

Jensen,

754 P.2d 1277 (Wash. Ct. App. 1988) ............... 23

Humphries v. Pay & Save, Inc.,

261 P.3d 592 (N.M. Ct. App. 2011) ................... 22

Kelecheva v. Multivision Cable T.V. Corp.,

22 Cal. Rptr. 2d 453 (Cal. Ct. App. 1993) ......... 23

Kilb v. First Student Transp., LLC,

236 P.3d 968 (Wash. Ct. App. 2010) ........... 23, 24

Lontz v. Tharp,

647 S.E.2d 718 (W. Va. 2007)............................ 23

Luke v. Collotype Labels USA, Inc.,

72 Cal. Rptr. 3d 440 (Cal. Ct. App. 2008) ......... 22

Robbins v. Harbour Indus., Inc.,

556 A.2d 55 (Vt. 1988) ....................................... 22

Rodriguez v. Yellow Cab Coop., Inc.,

253 Cal. Rptr. 779 (Cal. Ct. App. 1988) ............ 22

United Food & Com. Workers Int’l Union v.

Wal-Mart Stores, Inc.,

162 A.3d 909 (Md. 2017) ................................... 20

Venable v. GKN Auto.,

421 S.E.2d 378 (N.C. Ct. App. 1992)................. 23

Weise v. Wash. Tru Sols., LLC,

192 P.3d 1244 (N.M. Ct. App. 2008) ................. 20

Young v. Caterpillar, Inc.,

629 N.E.2d 830 (Ill. App. Ct. 1994) ................... 22

Statutes

National Labor Relations Act (29 U.S.C.

§§ 151–69) ............................................................ 1

Interstate Commerce Act of 1887,

Pub. L. 49-104, 24 Stat. 379 ................................ 4

Rules

U.S. Supreme Court Rule 37.3(a)............................. 1

Other Authorities

McNicholas et al., Economic Policy

Institute, Unlawful: U.S. employers are

charged with violating federal law in

41.5% of all union election campaigns

(Dec. 11, 2019) .................................................. 22

NLRB, NLRB Case Activity Reports: Unfair

Labor Practice Cases by Filing Party per

Fiscal Year (2022), https://www.nlrb.gov/reports/nlrb-case-activity-reports/unfair-laborpractice-cases/intake/unfair-labor-practicecase-intake-by-filing-party (last visited Dec.

6, 2022)............................................................... 22

NLRB, Statistical Tables – FY 2010,

https://www.nlrb.gov/sites/default/files/attachments/pages/node-149/table2.pdf (last

visited Dec. 6, 2022) .......................................... 22

Schmitt & Zipperer, Ctr. for Econ. & Pol’y

Rsch,, Dropping the Ax: Illegal Firings

During Union Election Campaigns, 19512007 (2009) ........................................................ 23

INTEREST OF AMICI CURIAE

Amici are law professors who research, write on,

and teach administrative law, constitutional law, and

federal courts, among other subjects. Amici’s interest

arises from their engagement with jurisdictional issues and the proper relationship between state courts

and specialized expert agencies created by Congress.

See Appendix A. This brief addresses issues that are

within amici’s particular areas of scholarly expertise.1

INTRODUCTION AND

SUMMARY OF ARGUMENT

Under the Court’s century-old primary jurisdiction

doctrine, it is appropriate for courts to stay or dismiss

without prejudice claims that Congress intended for a

specialized agency to address in the first instance as

part of a uniform regulatory scheme. In San Diego

Building Trades Council, Millmen’s Union, Local

2020 v. Garmon, 359 U.S. 236 (1959), the Court invoked the principles underlying the primary

jurisdiction doctrine to conclude that Congress intended for claims aimed at conduct arguably protected

or prohibited by the National Labor Relations Act

(NLRA or Act), 29 U.S.C. §§ 151–69, to be heard initially by the National Labor Relations Board (NLRB

or Board). Far from an anomaly, Garmon in fact rests

on longstanding and settled principles aimed at minimizing the potential for conflict among different

courts and between courts and agencies.

1 No counsel for a party authored this brief in whole or in

part. No person other than amici curiae or their counsel made a

monetary contribution intended to fund the preparation or submission of this brief. The parties have consented to the filing of

this brief pursuant to U.S. Supreme Court Rule 37.3(a).

The Washington Supreme Court’s decision in this

case is grounded in these principles. In concluding

that the Board should take the initial pass at Petitioner’s claims arising out of Respondent’s strike

activity, the Washington Supreme Court correctly observed that Petitioner’s claims require the sort of

context-specific and policy-driven inquiry that Congress intended for the specialized agency to take on

first. In fact, Respondent had already initiated Board

proceedings by the time that Petitioner commenced

this action, and the Board’s General Counsel has since

issued a complaint against Petitioner. The Washington Supreme Court was therefore correct to give the

Board the initial opportunity to resolve the parties’

dispute, and its prudent decision to do so should be

affirmed.

Moreover, neither Petitioner nor its amici provide

any justification for revisiting or revising the bedrock

principles that guided the Washington Supreme

Court. Like the primary jurisdiction doctrine on

which it relies, Garmon is now longstanding and well

settled. This Court should not disrupt the careful balance struck in Garmon and refined in decades of

decisions since, or take any action that might redirect

commonplace labor disputes from the Board to the

multitude of state courts, and thereby contravene the

principles of uniformity and consistency embodied in

the Act.

ARGUMENT

I. The Washington Supreme Court correctly

determined that Petitioner’s claims should

be reviewed by the Board in the first instance.

The decision below rests on established and timehonored principles governing the proper allocation of

decision making between courts and administrative

agencies. In certain areas of regulation, Congress has

committed the uniform interpretation and enforcement of the overarching statutory scheme to a

specialized agency. To serve Congress’s interest in

uniformity—and so that courts may obtain the benefit

of the agency’s expertise and experience—this Court

has recognized that the designated agency should

have the initial opportunity to adjudicate issues potentially arising within those particular regulatory

contexts. Because the Washington Supreme Court

correctly applied the foregoing principles in giving the

Board the first chance to resolve the parties’ underlying labor dispute, this Court should affirm.

A. The Court’s primary jurisdiction doctrine

has long carried out Congress’s intent for

certain regulatory schemes to be administered uniformly by expert agencies.

For over 115 years, this Court has recognized that

where Congress intends for an area of law to be regulated uniformly by a specialized administrative

agency, it is appropriate for that agency to take the

initial look at claims potentially falling within the

agency’s statutory mandate.

The Court first articulated this straightforward

principle—which forms the basis of the Court’s so-

called primary jurisdiction doctrine—in Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U.S.

426 (1907). That case involved a state law challenge

to an interstate freight rate that had been promulgated by a common carrier pursuant to the Interstate

Commerce Act of 1887 (ICA), Pub. L. 49-104, 24 Stat.

379. As the Court explained, the “undoubted … principal purpose[]” of the ICA was “to afford an effective

means for redressing the wrongs resulting from unjust discrimination and undue preference” in

interstate freight rate setting. Abilene Cotton, 204

U.S. at 439. And “the means by which these great purposes were to be accomplished was the placing upon

all carriers the positive duty to establish schedules of

reasonable rates which should have a uniform application to all.” Id. (emphasis added).

Describing the “fundamental question” presented

by the case as “the scope and effect of the act to regulate commerce upon the right of a shipper to maintain

an action at law against a common carrier to recover

damages because of the exaction of an alleged unreasonable rate,” the Court began by recognizing that the

ICA necessarily abrogated “pre-existing right[s] … so

repugnant to the statute that the survival of such

right[s] would in effect deprive the subsequent statute

of its efficacy; in other words, render its provisions nugatory.” Id. at 436, 437. Upon examining the text of

the ICA, the Court observed that the statute required

common carriers to establish and publish reasonable,

uniform rates, and then to file their rates with the Interstate Commerce Commission (ICC). See id. at 437–

38. The Court further observed that the statute

vested the ICC with the power to enforce the ICA, including the power to hear, investigate, and remedy

complaints of violations of the statute. See id.

Emphasizing “the administrative power conferred

upon the Commission, and … the duty, which the

statute casts upon that body, of seeing to it that the

statutory requirement as to uniformity and equality

of rates is observed,” the Court concluded that the ICC

must have the first opportunity to address challenges

to the reasonableness of interstate rates. Id. at 441.

Otherwise, “unless all courts reached an identical conclusion, a uniform standard of rates … would be

impossible.” Id. at 440.2

Since Abilene Cotton, the Court has continually reaffirmed that Congress has created certain specialized

administrative agencies with the intention of giving

those agencies the first opportunity to resolve issues

potentially arising within their purview. As the Court

has also repeatedly recognized, not only does Congress’s approach prevent “divergent conclusions … by

the various courts” and “divergence between the action of the [agency] and the decision of a court,” id. at

440, 441, but it allows for courts to benefit from the

experience and expertise of the specialized agency.

For example, in United States Navigation Co. v.

Cunard Steamship Co., 284 U.S. 474 (1932), the Court

affirmed the dismissal of federal antitrust claims on

the ground that Congress intended for such claims—

which alleged that the respondents charged lower

maritime shipping rates to shippers who agreed to use

2 Although the ICA elsewhere stated that the statute supple-

mented rather than displaced preexisting rights, the Court

concluded that those provisions must be construed narrowly in

light of the statute’s overriding concern for uniform rate setting

and the powers conferred upon the ICC. See Abilene Cotton, 204

U.S. at 441–48 (discussing §§ 9 and 22 of the ICA); see also, e.g.,

id. at 446 (“[T]he act cannot be held to destroy itself.”).

respondents’ shipping lines exclusively—to be heard

initially by the United States Shipping Board, the

agency tasked with overseeing such rates under the

federal Shipping Act. See id. at 483–84.

In so doing, the Court again noted Congress’s concern for regulatory uniformity as reflected in the

statute, especially the powers conferred upon the

Shipping Board to interpret and enforce the statute.

See id. The Court also observed that the Shipping Act

gave rise to “questions of an exceptional character, the

solution of which may call for the exercise of a high

degree of expert and technical knowledge.” Id. at 485.

Because such questions were “well understood by an

administrative body especially trained and experienced in the intricate and technical facts and usages

of the shipping trade,” the Court concluded that that

body should be given primary jurisdiction over “allegations [that] either constitute direct and basic

charges of violations of these provisions [of the Shipping Act], or are so interrelated with such charges as

to be, in effect, a component part of them.” Id.

The Court made similar observations in Far East

Conference v. United States, 342 U.S. 570 (1952),

which also involved an antitrust challenge to maritime shipping rates. In concluding that such claims

should likewise be dismissed, the Court found that the

claims were so closely intertwined with the Shipping

Act as to warrant application of the “principle, now

firmly established, that in cases raising issues of fact

not within the conventional experience of judges or

cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the

subject matter should not be passed over.” Id. at 574.

Again, the Court emphasized the important purposes

served by invoking the agency’s primary jurisdiction:

The doctrine effectuates Congress’s interest in “[u]niformity and consistency in the regulation of business

entrusted to a particular agency,” and allows for “the

limited functions of review by the judiciary” to be

“more rationally exercised, by preliminary resort for

ascertaining and interpreting the circumstances underlying legal issues to agencies that are better

equipped than courts by specialization, by insight

gained through experience, and by more flexible procedure.” Id. at 574–75.

These two purposes—“the desirable uniformity

which would obtain if initially a specialized agency

passed on certain types of administrative questions,”

and “the expert and specialized knowledge of the

agencies involved”—thus lie at the heart of the primary jurisdiction doctrine and drive the doctrine’s

application. United States v. W. Pac. Ry. Co., 352 U.S.

59, 64–65 (1956) (noting that these purposes “have often been given expression by this Court”). Where “the

reasons for the existence of the doctrine are present

and … the purposes it serves will be aided by its application in the particular litigation,” primary

jurisdiction “comes into play.” Id. at 64.3

3 Accordingly, in determining whether an agency’s primary

jurisdiction should apply, both this Court and the Courts of Appeals have consistently focused on Congress’s intent to commit

the uniform administration of a statute to a specialized, expert

agency. See, e.g., Ricci v. Chicago Mercantile Exch., 409 U.S.

289, 305 (1973) (citing W. Pac. Ry. Co., 352 U.S. at 64–65; Far E.

Conf., 342 U.S. at 574–75) (“These are matters that should be

dealt with in the first instance by those especially familiar with

the customs and practices of the industry and of the unique market-place involved in this case.”); Chicago Mercantile Exch. v.

Deaktor, 414 U.S. 113, 114–15 (1973) (citing Ricci, 409 U.S. 305–

07) (similar); Weinberger v. Bentex Pharms., Inc., 412 U.S. 645,

B. Garmon’s “arguably protected or prohibited” test is rooted in the same principles

as the primary jurisdiction doctrine.

The year after Far East Conference was decided,

the Court considered whether state labor law could

prohibit conduct that federal labor law also prohibited. See Garner v. Teamsters, Chauffeurs & Helpers

Loc. Union No. 776 (A. F. L.), 346 U.S. 485, 486 (1953).

Concluding that such a state law impermissibly conflicted with the NLRA as amended, the Court echoed

many of the same observations it had made in its earlier primary jurisdiction decisions regarding the

import of Congress committing the administration of

a uniform regulatory scheme to a specialized, expert

agency:

Congress did not merely lay down a substantive

rule of law to be enforced by any tribunal competent to apply law generally to the parties. It

went on to confide primary interpretation and

application of its rules to a specific and specially

constituted tribunal and prescribed a particular procedure for investigation, complaint and

654 (1973) (noting “peculiar expertise of … administrative

agency” and need for “uniformity and consistency” (second quotation quoting Far E. Conf., 342 U.S. at 574)); Conservation L.

Found., Inc. v. Exxon Mobil Corp., 3 F.4th 61, 72 (1st Cir. 2021);

Palmer v. Amazon.com, Inc., 51 F.4th 491, 506 (2d Cir. 2022);

Consol. Rail Corp. v. Grand Trunk W. R.R. Co., 607 F. App’x 484,

491 (6th Cir. 2015); United States ex rel. Sheet Metal Workers

Int’l Ass’n, Loc. Union 20 v. Horning Invs., LLC, 828 F.3d 587,

592 (7th Cir. 2016); Chlorine Inst., Inc. v. Soo Line R.R., 792 F.3d

903, 909 (8th Cir. 2015); Astiana v. Hain Celestial Grp., Inc., 783

F.3d 753, 760 (9th Cir. 2015); Benham v. Ozark Materials River

Rock, LLC, 885 F.3d 1267, 1277 (10th Cir. 2018); Sierra v. City

of Hallandale Beach, 904 F.3d 1343, 1351 (11th Cir. 2018).

notice, and hearing and decision, including judicial relief pending a final administrative

order. Congress evidently considered that centralized administration of specially designed

procedures was necessary to obtain uniform application of its substantive rules and to avoid

these diversities and conflicts likely to result

from a variety of local procedures and attitudes

towards labor controversies…. A multiplicity of

tribunals and a diversity of procedures are quite

as apt to produce incompatible or conflicting adjudications as are different rules of substantive

law.

Id. at 490–91 (emphasis added); see W. Pac. Ry. Co.,

352 U.S. at 64–65; Far E. Conf., 342 U.S. at 573–75;

Cunard, 284 U.S. at 480–85; Abilene Cotton, 204 U.S.

at 237–38. In fact, the Court expressly recognized in

Garner that its decision was consistent with the principles set forth in Abilene Cotton, which first

established the primary jurisdiction doctrine in the

context of the ICA. See Garner, 346 U.S. at 496–97 &

497 n.21 (citing Abilene Cotton, 204 U.S. at 443–44)

(noting that in both labor law and rate setting, Congress intended for “federal statute law applied by

administrative procedures” to displace “individual

suits in courts to enforce common-law doctrines of private right”).

The NLRA reflects a similar structure to the ICA,

and Garmon flows directly from the same principles

set forth in Abilene Cotton and its progeny. By reserving “activity … arguably subject to § 7 or § 8 of the

Act” for the Board’s initial review, Garmon gives the

same due “regard to the fact that Congress has entrusted administration of the labor policy for the

Nation to a centralized administrative agency, armed

with its own procedures, and equipped with its specialized knowledge and cumulative experience.”

Garmon, 359 U.S. at 242 (calling this fact “the unifying consideration of [the Court’s] decisions” in this

area); see id. at 242–43 (quoting Garner, 346 U.S. at

490–91). As the Court has frequently emphasized,

courts must “recognize the Board’s special function of

applying the general provisions of the Act to the complexities of industrial life[,] and of ‘[appraising]

carefully the interests of both sides of any labor management controversy in the diverse circumstances of

particular cases’ from its special understanding of ‘the

actualities of industrial relations.’” NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963) (citations

omitted and second alteration in original).4

Accordingly, as in the Court’s earlier primary jurisdiction cases, “courts are not primary tribunals” to

4 See also, e.g., NLRB v. Curtin Matheson Sci., Inc., 494 U.S.

775, 786 (1990) (“This Court has emphasized often that the

NLRB has the primary responsibility for developing and applying national labor policy…. This Court therefore has accorded

Board rules considerable deference.” (citations omitted)); Pattern

Makers’ League of N. Am. v. NLRB, 473 U.S. 95, 100 (1985) (“Because of the Board's ‘special competence’ in the field of labor

relations, its interpretation of the Act is accorded substantial deference.”); NLRB v. Loc. Union No. 103, Int’l Ass’n of Bridge,

Structural & Ornamental Iron Workers, 434 U.S. 335, 350 (1978)

(“Courts may prefer a different application of the relevant sections, but ‘[t]he function of striking that balance to effectuate

national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National

Labor Relations Board, subject to limited judicial review.’”); Marine Eng’rs Beneficial Ass’n v. Interlake S.S. Co., 370 U.S. 173,

180 (1962) (“The [policy] considerations involved in answering

these questions are largely of a kind most wisely entrusted initially to the agency charged with the day-to-day administration

of the Act as a whole.”).

determine “whether the particular activity regulated

by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections.” Garmon, 359 U.S.

at 244. Rather, “[i]t is essential to the administration

of the Act that these determinations be left in the first

instance to the National Labor Relations Board.” Id.

at 244–45; see also id. at 242 (“To the National Labor

Relations Board and to Congress must be left those

precise and closely limited demarcations that can be

adequately fashioned only by legislation and administration.”). Thus, “the considerations underlying

Garmon are similar to”—if not the same as—“those

underlying the primary-jurisdiction doctrine.” Sears,

Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180, 199 n.29 (1978).

Garmon’s “arguably protected or prohibited” test

also operates, at least initially, in much the same way

that the primary jurisdiction doctrine has historically

operated. Similar to other contexts where the Court

has invoked an agency’s primary jurisdiction, see, e.g.,

Cunard, 284 U.S. at 252 (invoking Shipping Board’s

primary jurisdiction even where “[i]t may be … that in

an original proceeding before the Board, the allegations upon which petitioner relies may not be

sustained”), Garmon applies even to “ambiguous situations” where the NLRA’s reach is not immediately clear, Int’l Longshoremen’s Ass’n v. Davis, 476 U.S.

380, 389–90 (1986). In fact, the Court has used the

same terms as in Garmon to describe the potential

reach of other agencies’ primary jurisdiction. See

Ricci, 409 U.S. at 299–300 (noting, in case involving

Commodity Exchange Commission, that primary jurisdiction concerns “arise[] when conduct seemingly

within the reach of [certain] laws is also at least arguably protected or prohibited by another regulatory

statute enacted by Congress” (emphasis added)).

Moreover, both Garmon and the Court’s earlier

primary jurisdiction cases contemplate that an action

may be dismissed pending review by the specialized

administrative agency designated for such task by

Congress. Compare, e.g., Sears, 436 U.S. at 203 (characterizing Garmon as requiring state courts to take

“jurisdictional hiatus” pending completion of Board

proceedings and any subsequent federal appellate review), with Far E. Conf., 342 U.S. at 577 (ordering

district court to dismiss action after discerning “no

purpose” in “hold[ing] the … action in abeyance … while the proceeding before the Board and

subsequent judicial review or enforcement of its order

are being pursued”), and Cunard, 284 U.S. at 252 (affirming motion to dismiss on primary jurisdiction

grounds). And just as primary jurisdiction preserves

the jurisdiction of state (and federal) courts to resolve

claims after the specialized administrative agency has

conducted its initial review, see, e.g., W. Pac. Ry. Co.,

352 U.S. at 63–64; Far E. Conf., 342 U.S. at 576–77,

the same result obtains under Garmon if the Board

concludes that the activity is neither protected nor

prohibited by the Act. See Davis, 476 U.S. at 397 (“[I]f

the Board decides that the conduct is not protected or

prohibited … the court [may] entertain the litigation.”).

The Court’s primary jurisdiction precedents also

contemplate that the agency’s decision—like the decisions of the NLRB—may be the final word in some

matters, insofar as the agency’s decision (and any related relief) may eliminate the need for further

litigation. See Far E. Conf., 342 U.S. at 577 (noting

that complainants may refile suit after “the proceeding before the [agency] and subsequent judicial review

or enforcement of its order”… “if appropriate” to do

so). And even where the agency’s decision does not

end the dispute, the matters that remain for judicial

resolution may be “limited”: As the Court has explained, the role of the judiciary in primary

jurisdiction cases is to assign “legal consequences” to

“facts after they have been appraised by specialized

competence.” Id. at 574; see, e.g., Abilene Cotton, 204

U.S. at 440 (explaining how it would be “impossible”

to achieve Congress’s goal of uniformity if “various

courts [were] called upon to consider the subject as an

original question”).

Finally, consistent with general principles governing agency decision making, decisions rendered by the

NLRB and decisions rendered by agencies pursuant to

their primary jurisdiction are both subject to review

by the Courts of Appeals and this Court. Compare,

e.g., Garmon, 359 U.S. at 245 (emphasizing that

NLRB decisions are “subject to appropriate federal judicial review”), with, e.g., Far E. Conf., 342 U.S. at 577

(“An order of the [agency] will be subject to review by

a United States Court of Appeals, with opportunity for

further review in this Court on writ of certiorari.”).

To be sure, the “consequences” of the primary jurisdiction doctrine may differ from those of Garmon in

certain respects. Sears, 436 U.S. at 199 n.29. As

noted, under the traditional primary jurisdiction doctrine, courts may retain jurisdiction to decide a matter

after the agency proceedings draw to a close, presuming that the agency’s decision (and any subsequent

appellate review) does not resolve the dispute. But see

Far E. Conf., 342 U.S. at 574 (emphasizing “limited”

nature of court’s role after agency’s factfinding). Under Garmon, where “the Board decides, subject to

appropriate federal judicial review, that conduct is

protected by § 7, or prohibited by § 8,” the state courts

lack jurisdiction to hear claims arising from such conduct or activity. Garmon, 359 U.S. at 245 (emphasis

added); see id. at 243–44 (describing narrow exceptions to these rules). Moreover, whereas courts may

have some discretion whether to invoke an agency’s

primary jurisdiction in certain circumstances, see

Pharm. Rsch. & Mfrs. of Am. v. Walsh, 538 U.S. 644,

673–74 (2003) (Breyer, J., concurring in part and concurring in judgment), Garmon gives courts no such

discretion, see Garmon, 359 U.S. at 245 (“When an activity is arguably subject to § 7 or § 8 of the Act, the

States as well as the federal courts must defer to the

exclusive competence of the National Labor Relations

Board ….” (emphasis added)).

But to the extent that these features of Garmon are

materially distinctive, see, e.g., Far E. Conf., 342 U.S.

at 577 (noting that primary jurisdiction doctrine may

also preclude further judicial proceedings), they are

either grounded in “[c]onventional conflict pre-emption principles,” Boggs v. Boggs, 520 U.S. 833, 844

(1997) (noting that such principles “require pre-emption ‘where compliance with both federal and state

regulations is a physical impossibility, ... or where

state law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of

Congress’” (alteration in original)), or otherwise warranted by Congress’s heightened concern for “state

interference with national [labor] policy,” Garmon,

359 U.S. at 245.

As Garmon explains, “[w]hen it is clear or may

fairly be assumed that the activities which a State

purports to regulate are protected by § 7 … or constitute an unfair labor practice under § 8, due regard for

the federal enactment requires that state jurisdiction

must yield,” because “leav[ing] the States free to regulate conduct so plainly within the central aim of

federal regulation involves too great a danger of conflict between power asserted by Congress and

requirements imposed by state law.” Id. at 244. That

same danger is present even where the Board has

failed “to define the legal significance under the Act of

a particular activity”: In such circumstances, “[t]he

governing consideration” remains that “allow[ing] the

States to control activities that are potentially subject

to federal regulation involves too great a danger of

conflict with national labor policy.” Id. at 246 (emphasis added).

C. The Washington Supreme Court’s decision is driven by the same concerns

underlying Garmon and the primary jurisdiction doctrine as a whole.

In applying Garmon below, the Washington Supreme Court did not stray from the principles

animating Garmon or the Court’s earlier primary jurisdiction decisions. To the contrary, the Washington

Supreme Court expressly (and correctly) observed

that “courts are not the proper forum for deciding

whether particular conduct is subject to section 7 or

section 8 in the first instance,” J.A. 153 (citing Garmon, 359 U.S. at 244–45), and cited “the need to avoid

even the potential risk of interference with the development of national labor policy under the expertise of

the Board” as a basis for its decision, J.A. 152 (citing

Garmon, 359 U.S. at 243–44). The Washington Supreme Court’s decision is thus firmly rooted in both

Garmon and this Court’s primary jurisdiction precedents, and should be affirmed.

Indeed, as the Washington Supreme Court explained, resolving Petitioner’s claims would

eventually require precisely the type of inquiry that

might lead to impermissible “divergence” among

courts and between courts and the Board, Abilene Cotton, 204 U.S. at 441:

To fully analyze whether the conduct is unprotected under section 7 in this case, we would

need to engage with the facts as a matter of first

impression, balancing the economic pressure

against the strikers’ legitimate interest. Based

on a full factual analysis, we might determine

that the strike activity was unprotected because the drivers did not take reasonable

precautions to protect Glacier’s product or

trucks. On the other hand, the strike could also

be viewed as protected because the concrete

loss was incidental damage given the perishable nature of the concrete. In any event,

Garmon makes clear that this kind of fact-specific determination is a function of the Board in

the interest of uniform development of labor policy.

J.A. 165 (emphasis added). Accordingly, rather than

apply its own “procedures and attitudes towards [the

parties’] labor controvers[y],” the Washington Supreme Court properly yielded to the Board’s

“centralized administration” of the Act. Garmon, 359

U.S. at 242–43; see also, e.g., id. at 245 (“It is not for

us to decide whether the National Labor Relations

Board would have, or should have, decided these questions in the same manner.”).

The Washington Supreme Court’s cautious approach below is similar to that taken by the Court in

Cunard, which was likewise before the Court on a motion to dismiss. See 284 U.S. at 478. In affirming

dismissal of the complaint, the Court rejected the argument that simply because the agency had “already

determined that an agreement similar to the one here

involved is unlawful under the Shipping Act … the

courts may take jurisdiction of the case without further preliminary resort to the [Shipping] Board.” Id.

at 487–88. Besides noting that the agency’s prior decision “did not involve this agreement or these

parties,” the Court also placed particular emphasis on

the fact that the prior case “was decided after a full

hearing,” whereas the instant case “arises upon a motion to dismiss, which admits the facts, so far as they

are well pleaded, only for the sake of the argument.”

Id. at 488 (emphases added). And because the Court

did not know “[w]hat might be disclosed … upon a

hearing,” the Court declined “to conjecture” as to how

the agency might rule. Id. (noting that “in an original

proceeding before the [Shipping] Board, the allegations upon which petitioner relies may not be

sustained, or may be so qualified as to render the

[prior] decision entirely inapplicable”).

The Washington Supreme Court’s refusal to engage in similar conjecture here was especially

prudent, as related proceedings before the NLRB had

already been initiated at the time that Petitioner filed

its complaint. Compare U.S. Br. App. 2a (reflecting

that Respondent filed initial charge against Petitioner

regarding underlying dispute on July 24, 2017, and

filed amended charge on September 6, 2017), with J.A.

27 (reflecting that Petitioner filed its state court complaint on December 4, 2017). And the NLRB General

Counsel has since issued a complaint against Petitioner, alleging that Petitioner’s conduct in the

parties’ dispute violated the Act. See U.S. Br. App.

1a–7a. The risk of “incompatible or conflicting adjudications”—and the resulting “danger of conflict with

national labor policy”—is thus particularly high in

this case, and the Washington Supreme Court was

right to avoid such hazards. Garmon, 359 U.S. at 243,

246; see Davis, 476 U.S. at 398 (noting that Board’s

initial jurisdiction under Garmon may properly be invoked where there is sufficient “factual or legal

showing”).5

In sum, although there may be some circumstances where a court may reasonably discern from

the pleadings that adjudicating the action will not

lead to any potential conflict with related Board proceedings, see, e.g., Sears, 436 U.S. at 201–02 (finding

“no risk of overlapping jurisdiction” where “employer

has no acceptable method of invoking, or inducing the

Union to invoke, the jurisdiction of the Board”), this

case does not present those circumstances. The Court

should therefore affirm the decision below.

II. There is no reason for this Court to disrupt

the careful balance struck by Garmon and

its progeny.

The foregoing discussion establishes that the

Washington Supreme Court faithfully applied the

principles set forth in Garmon and the Court’s earlier

primary jurisdiction cases, and its decision should be

5 As noted, if the Board’s ultimate decision regarding the par-

ties’ dispute proves to be erroneous, then the Courts of Appeals

and this Court would have ample opportunity to review that decision.

affirmed on that basis. But insofar as Petitioner and

its amici are urging the Court to revisit or revise the

principles on which that decision is based, the Court

should decline to do so.

Besides drawing from the primary jurisdiction doctrine, the Court’s decision in Garmon was also

informed by its past experience with previous failed

approaches to federal labor law preemption. See

Amalgamated Ass’n of St., Elec. Ry. & Motor Coach

Emps. of Am. v. Lockridge, 403 U.S. 274, 291 (1971).

That experience “taught” the Court “that each of these

[previous] methods sacrificed important federal interests in a uniform law of labor relations centrally

administered by an expert agency without yielding

anything in return by way of predictability or ease of

judicial application.” Id. Thus, in adopting the “arguably protected or prohibited” standard in Garmon, the

Court sought not only to give effect to Congress’s directive that the Board establish a national uniform

labor policy, but also to promulgate “a rule capable of

relatively easy application, so that lower courts may

largely police themselves in this regard.” Id. at 290.

The Court’s efforts have largely succeeded: Over

time, the lower courts have developed a consistent understanding of Garmon’s application and a consensus

has emerged regarding the local interests that justify

certain exceptions to the Board’s exclusive jurisdiction

over conduct arguably prohibited by the Act. See, e.g.,

Davis, 476 U.S. at 389 (Garmon “set out the now wellestablished scope of NLRA pre-emption”); Pa. Nurses

Ass’n v. Pa. State Educ. Ass’n, 90 F.3d 797, 801 (3d

Cir. 1996) (same); Richardson v. Kruchko & Fries, 966

F.2d 153, 156 (4th Cir. 1992) (same); Connell v. U.S.

Steel Corp., 516 F.2d 401, 404 (5th Cir. 1975) (same);

Sears, Roebuck & Co. v. Solien ex rel. NLRB, 450 F.2d

353, 355 (8th Cir. 1971) (similar); Senter v. Hughes

Aircraft Co., 53 F.3d 340, at *3 (9th Cir. 1995) (Table)

(same); see also, e.g., Brown v. Hotel & Rest. Emps. &

Bartenders Int’l Union Loc. 54, 468 U.S. 491, 502–03

(1984) (discussing established exceptions); United

Food & Com. Workers Int’l Union v. Wal-Mart Stores,

Inc., 162 A.3d 909, 918–24 (Md. 2017) (similar); Weise

v. Wash. Tru Sols., LLC, 192 P.3d 1244, 1248–49,

1252–53 (N.M. Ct. App. 2008) (similar); Foreman v.

AS Mid-Am., Inc., 586 N.W.2d 290, 300–01 (Neb.

1998) (similar).

At the same time, Garmon has also amply served

the federal interests animating the Act by efficiently

funneling labor-management disputes arising under

the Act to the Board for its initial expert review. And

while this case involves a labor union’s assertion of

Garmon preemption, Garmon’s scope is of course not

so limited. In fact, Garmon is also often invoked by

employers seeking to preempt lawsuits by unions and

workers on the ground that such actions are more appropriately suited for resolution by the Board rather

than state courts. As Judge Wilkinson has noted,

“[s]tate law affords an almost limitless variety of

claims that could be asserted against the activities of

both labor and management, and through the years

both sides have invoked the principles of Garmon preemption to avoid the specter of inconsistent

legal obligations, procedures, and remedies.” Richardson, 966 F.2d at 156.

Indeed, courts frequently address—and dismiss as

preempted under Garmon—state statutory or common law claims by workers who allege that they were

disciplined or fired for engaging in protected, concerted activity, holding that the Act assigns the Board

exclusive jurisdiction to adjudicate such claims.6

Meanwhile, adverse employer actions continue to generate thousands of Board charges each year.7 Were it

6 See, e.g., Carr v. Metals, 351 F. App’x 128, 129–30 (7th Cir.

2009) (claim of retaliation for participating in union activities

subject to NLRB’s primary jurisdiction); Satterfield v. W. Elec.

Co., 758 F.2d 1252, 1253–54 (8th Cir. 1985) (tortious interference

claim against third-party business based on termination allegedly at third-party’s request for distributing anti-union

literature preempted); Moreno v. UtiliQuest, LLC, 29 F.4th 567,

574–75 (9th Cir. 2022) (terminated worker’s claims for intentional misrepresentation, fraud, whistleblowing retaliation, and

wrongful termination in violation of public policy preempted);

Guinan v. Dean Foods of Cal., Inc., 16 F. App’x 627, 629 (9th Cir.

2001) (claims of wrongful discharge for complaints about employer’s violations of law covered in collective bargaining

agreement preempted); Buscemi v. McDonnell Douglas Corp.,

736 F.2d 1348, 1350 (9th Cir. 1984) (claim of retaliatory discharge for passing out petitions and voicing employee complaints

preempted); Viestenz v. Fleming Cos., Inc., 681 F.2d 699, 701–02

(10th Cir. 1982) (claim of wrongful discharge because of union

activity in violation of public policy preempted); Bimler v. Stop &

Shop Supermarket Co., 965 F. Supp. 292, 297–99 (D. Conn. 1997)

(claim of wrongful suspension for discussing concerns with management preempted); Veal v. Kerr-McGee Coal Corp., 682 F.

Supp. 957, 960–61 (S.D. Ill. 1988), aff’d, 885 F.2d 873 (7th Cir.

1989) (claim of retaliatory discharge for joining union

preempted); Smith v. Westlake Vinyls, Inc., 403 F. Supp. 3d 625,

633–35 (W.D. Ky. 2019) (claim of wrongful discharge for using

grievance process preempted); Smith v. Excel Maint. Servs., 617

F. Supp. 2d 520, 525–27 (W.D. Ky. 2008) (claim of wrongful discharge for organizing meeting to discuss issues affecting job

performance and morale preempted); Morris v. Chem-Lawn

Corp., 541 F. Supp. 479, 482–83 (E.D. Mich. 1982) (former employee’s breach of contract claim for discharge without good

cause preempted because discharge allegedly based on union activity); Elliott v. Tulsa Cement, LLC, 357 F. Supp. 3d 1141, 1151–

54 (N.D. Okla. 2019) (claim of wrongful termination for filing

NLRB charges and union grievances preempted); Class v. Ranger

Am. Armored Servs., Inc., 245 F. Supp. 2d 370, 373–74 (D.P.R.

2003), aff’d sub nom. Martinez-Class v. Ranger Am. Armored

Servs., Inc., 89 F. App’x 746 (1st Cir. 2004) (former employee’s

claim that he was discharged for union activity, among other reasons, preempted); Luke v. Collotype Labels USA, Inc., 72 Cal.

Rptr. 3d 440, 444–45 (Cal. Ct. App. 2008) (wrongful termination

claim based on discussions with fellow employees about workplace safety preempted); Rodriguez v. Yellow Cab Coop., Inc., 253

Cal. Rptr. 779, 782–83 (Cal. Ct. App. 1988) (wrongful termination claim by employee claiming retaliation for testimony before

utilities commission and instigating class action against employer preempted); Young v. Caterpillar, Inc., 629 N.E.2d 830,

830, 833–34 (Ill. App. Ct. 1994) (class of individual employees’

breach of contract claims based on failure to reinstate some striking employees preempted); Humphries v. Pay & Save, Inc., 261

P.3d 592, 596–97 (N.M. Ct. App. 2011) (terminated employee’s

contract, misrepresentation, wrongful termination, and tortious

interference with contractual relations claims preempted); De

Los Santos v. Heldenfels Enters., Inc., 632 S.W.3d 584, 588, 596–

97 (Tex. Ct. App. 2020) (claim of retaliation by employee who

passed along co-worker’s petition seeking more vacation time

preempted); Robbins v. Harbour Indus., Inc., 556 A.2d 55, 58 (Vt.

1988) (claims of breach of contract and wrongful discharge based

on union organizing preempted).

7 See, e.g., NLRB, NLRB Case Activity Reports: Unfair Labor

Practice Cases by Filing Party per Fiscal Year (2022) (more than

18,000 charges by individuals and unions per year in 2017 to

2019), https://www.nlrb.gov/reports/nlrb-case-activity-reports/

unfair-labor-practice-cases/intake/unfair-labor-practice-case-intake-by-filing-party (last visited Dec. 6, 2022); NLRB, Statistical

Tables – FY 2010, tbl. 2 (6,531 charges in fiscal year 2010 under

section 8(a)(3), for unlawful changes in conditions of employment, discharge, or discipline), https://www.nlrb.gov/sites/

default/files/attachments/pages/node-149/table2.pdf (last visited

Dec. 6, 2022); see also McNicholas et al., Economic Policy Institute, Unlawful: U.S. employers are charged with violating

federal law in 41.5% of all union election campaigns, at 5-6 & tbl.

1 (Dec. 11, 2019) (reporting that in 3,620 NLRB union elections

in 2016 or 2017, 19.9% involved at least one charge for illegally

terminating workers for union activity and 29.6% involved

charges for illegal retaliation, changes in employment conditions,

not for Garmon, it is likely that many of those charges

would be brought instead as lawsuits raising claims

such as wrongful termination, breach of contract, and

tortious interference with contract or business relations. Similarly, supervisors who are currently barred

under Garmon from bringing wrongful termination

claims based on allegations that they were fired for

refusing to engage in anti-union conduct would also

find a newly opened pathway for litigating their

claims.8

or discharge); Schmitt & Zipperer, Ctr. for Econ. & Pol’y Rsch,,

Dropping the Ax: Illegal Firings During Union Election Campaigns, 1951-2007 at 1 (2009) (“In 2007, the most recent year for

which data is available, 30 percent of union election campaigns

had an illegal firing. Pro-union workers faced about a 2.3 percent

chance of being illegally fired during the course of the campaign.”).

8 See, e.g., Chavez v. Copper State Rubber of Ariz., Inc., 897

P.2d 725, 731–33 (Ariz. Ct. App. 1995); Kelecheva v. Multivision

Cable T.V. Corp., 22 Cal. Rptr. 2d 453, 456–57 (Cal. Ct. App.

1993); Henry v. Intercontinental Radio, Inc., 202 Cal. Rptr. 328,

331–33 (Cal. Ct. App. 1984); Venable v. GKN Auto., 421 S.E.2d

378, 380–81 (N.C. Ct. App. 1992); Kilb v. First Student Transp.,

LLC, 236 P.3d 968, 971–73 (Wash. Ct. App. 2010); Lontz v.

Tharp, 647 S.E.2d 718, 722–23 (W. Va. 2007). For examples of

other types of claims against employers commonly held

preempted, see also, e.g., Kolentus v. Avco Corp., 798 F.2d 949,

960–62 (7th Cir. 1986) (claim of common law fraud preempted);

Larranaga v. Nw. Defs. Ass’n, 4 F. App’x 391, 393 (9th Cir. 2001)

(claims based on alleged breach of obligation to grant pay increases and benefits preempted); Barbieri v. United Techs. Corp.,

771 A.2d 915, 933–36 (Conn. 2001) (class of breach of contract

claims based on wage cuts preempted because arguably, even if

not clearly, covered by Act); Chung v. McCabe Hamilton & Renny

Co., Ltd., 128 P.3d 833, 842–45 (Haw. 2006) (claims of abuse of

process and malicious prosecution by shop steward against

whom restraining order was obtained preempted); Hotel Emps.

But courts have repeatedly held—and Congress reaffirmed shortly after Garmon was decided, see Resp.

Br. 38–39—that these are matters for the Board to resolve, not the “multiplicity” of state courts.9 Garmon,

359 U.S. at 243 (emphasizing “diversities and conflicts” that would result). Thus, the Court should

reject any suggestion to narrow Garmon, either by

limiting the scope of conduct that Garmon reaches or

by expanding the local-feeling exception. See U.S. Br.

28–30; Resp. Br. 32–47. Otherwise, the Court risks

upsetting the careful balance that Garmon initially

struck—and subsequent decades of caselaw have

since refined—and shifting the battleground for many

common labor disputes from the Board to state courts,

potentially leading to a flurry of state court suits by

employers, employees, and unions alike.

CONCLUSION

The Court should affirm the Washington Supreme

Court’s decision.

& Rest. Emps., Loc. 8 v. Jensen, 754 P.2d 1277, 1281–83 (Wash.

Ct. App. 1988) (claim for tortious interference with contract and

business expectancy based on transfer of restaurant ownership

in course of negotiation for new collective bargaining agreement

preempted).

9 See, e.g., Kolentus, 798 F.2d at 961 (common law fraud);

Lumber Prod. Indus. Workers Loc. No. 1054 v. W. Coast Indus.

Rels. Ass’n, Inc., 775 F.2d 1042, 1049 (9th Cir. 1985) (tortious interference with prospective contractual relationship); Barbieri,

771 A.2d at 937–38 (breach of contract); Kilb, 236 P.3d at 974–75

(wrongful discharge in contravention of express state public policy).

Respectfully submitted,

DIANA WINTERS

UCLA SCHOOL OF LAW

385 Charles E. Young

Drive East

Los Angeles, CA 90095

STACEY M. LEYTON

Counsel of Record

JUHYUNG HAROLD LEE

DERIN MCLEOD

ALTSHULER BERZON LLP

177 Post Street, Suite 300

JANET HEROLD

San Francisco, CA 94108

JUSTICE CATALYST LAW

(415) 421-7151

40 Rector Street, 9th Floor

sleyton@altber.com

New York, NY 10006

Counsel for Amici Curiae

December 8, 2022

APPENDIX A

List of Amici Curiae

Kate Andrias

Patricia D. and R. Paul Yetter Professor of Law

Columbia Law School

Bernard W. Bell

Professor of Law and Herbert Hannoch Scholar

Rutgers Law School (Newark Campus)

Jenny Breen

Associate Professor of Law

Syracuse University College of Law

Angela B. Cornell

Clinical Professor of Law

Director, Labor Law Clinic

Cornell Law School

Scott L. Cummings

Robert Henigson Professor of Legal Ethics

Professor of Law

UCLA School of Law

Caroline Fredrickson

Distinguished Visitor from Practice

Georgetown Law

Title and institutional affiliation are listed for identification

purposes only.



Jeffrey S. Lubbers

Professor of Practice in Administrative Law

American University, Washington College of Law,

Dennis O. Lynch

Dean Emeritus and Professor Emeritus

University of Miami School of Law

Florence Wagman Roisman

William F. Harvey Professor of Law and Chancellor’s

Professor

Indiana University Robert H. McKinney School of

Law

Dru Stevenson

Wayne Fischer Research Professor & Professor of Law

South Texas College of Law Houston

Katherine V.W. Stone

Arjay and Frances Fearing Miller Distinguished Professor of Law, Emerita

UCLA School of Law

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.