Is Garmon on its last legs? First came the Supreme Court’s 2023 decision in Glacier Northwest, Inc. v. Teamsters, where five Justices called the labor law preemption doctrine “unusual” while two others invited the Court to reconsider the “strange[] . . . Garmon regime.” Then came Loper Bright, ending Chevron deference. Add in attacks on the NLRB’s constitutionality and a quorum-less Board, and many of us concluded Garmon’s days were numbered — and that we should look exclusively to the states to build the new labor-law order.
Maybe it’s time for Garmon to go. But whatever one thinks of Garmon as a matter of policy, the Sixth Circuit’s recent decision in Rieth-Riley Construction Co. v. Operating Engineers Local 324 offers an occasion to revisit the doctrine’s legal foundations. The upshot: those foundations hold.
After Glacier was decided, I argued that Garmon is best understood not as a novel or anomalous doctrine, but as the combined application of two ordinary ones: primary jurisdiction and conflict preemption. Under that account, Garmon’s sequencing rule (yield to the Board first) reflects the Board’s primary jurisdiction to decide labor law disputes; the resulting displacement of state law (once the Board has spoken) reflects ordinary Supremacy Clause preemption. The two components typically travel together because the usual Garmon case involves a state-law claim.
But in Rieth-Riley, there was no preemption issue — there was no state law issue at all. Rieth-Riley and...
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