On June 1, 2023, in Glacier Northwest v. Teamsters, the United States Supreme Court ruled for the employer in a case with significant implications for the right of unions to strike and the right of employers to respond to strikes with court actions for damages.

In Glacier, the Court addressed whether the National Labor Relations Act (“NLRA” or the “Act”) “preempts an employer’s state tort claim against a union for property damage that allegedly occurred because workers failed to take reasonable precautions to protect the employer’s property before going on strike.” The Court held that the NLRA does not preempt state law tort claims alleging intentional destruction of property, particularly where the union fails to take reasonable precautions to protect against foreseeable and imminent harm.

Background

Glacier Northwest, a concrete seller and supplier, prepares, mixes, and delivers concrete by, among other ways, loading it in trucks for delivery and pouring the same day. Failure to deliver the loaded concrete timely causes it to harden, rendering it unusable and the trucks it is stored in inoperable. Mitigating these effects is difficult because dumping concrete “at random” would create an environmental hazard.  

Glacier’s truck drivers were represented by the International Brotherhood of Teamsters Local Union No. 174 (“Union”) with whom Glacier was engaged in collective bargaining negotiations. Per the Complaint, the Union ordered Glacier’s delivery drivers to strike right after concrete had been freshly poured into some trucks, and while other drivers were out delivering concrete. After the strike began, Glacier instructed its drivers to finish deliveries in progress, but the Union directed the drivers to ignore the order and at least nine drivers abandoned their trucks. As a result, Glacier had to quickly resolve the emergency situation and properly dispose of the concrete before it hardened in the trucks. Glacier managed to resolve the situation in a five-hour-long “mad scramble” and prevent damage to its trucks, but incurred costs including the use of non-striking workers to dig trenches for the concrete, and concrete also hardened in its bunkers and become unusable.

Lower Court Decisions

Following the strike, Glacier sued in Washington State court, claiming that the union intentionally and maliciously sabotaged, ruined, and destroyed the concrete. The trial court dismissed the property damage claims, concluding that the strike and work stoppage were “arguably protected” under the NLRA and were therefore preempted by federal law pursuant to the Supreme Court’s 1959 decision in San Diego Building Trades Council v. Garmon, discussed below. The state court of appeals reversed, holding that the NLRA does not shield from liability employees who fail to take reasonable precautions to prevent the destruction of property or products before engaging in a work stoppage. The Washington Supreme Court then reversed the appellate court, agreeing that employees must take reasonable precautions to protect property and products, but holding that the record demonstrated that because the strike and work stoppage were arguably protected by federal law, determining whether such protection overrides state tort liability should be left to the Board.

While the tort case proceeded through the courts, the union filed an unfair labor practice charge claiming that Glacier had punished striking drivers for protected conduct. While all of this was pending, the NLRB’s general counsel issued a complaint alleging that Glacier had unlawfully disciplined drivers for striking and for filing the lawsuit in state court.

Garmon Preemption Generally

The Supreme Court has long held that the NLRA preempts certain state laws that would otherwise impact implementation of the Act. The Supreme Court held in Garmon that state and federal courts may not resolve claims based on conduct that is actually or “arguably protected” by the NLRA.¹ So-called Garmon preemption provides that the states cannot regulate conduct “that the NLRA protects, prohibits, or arguably protects or prohibits.”² Under Garmon, when “the same controversy may be presented to the state court or the NLRB, it must be presented to the Board.”³ The Court in Garmon explained that such preemption keeps states from addressing conduct that is the subject of national regulation so as to avoid “potential frustration of national purposes.”⁴

Strikes Remain Protected Activity

The core protected activities that Garmon addresses are rights included in Section 7 of the NLRA. Effectively the NLRB “employee bill of rights,” Section 7 provides that employees have the right to “engage in . . .  concerted activities for the purpose of collectively bargaining” including “the right to strike.” A strike is an economic weapon that employees may use to achieve bargaining or other goals. In general, strikes are expected to cause economic harm, including loss of profits or product, and are not unlawful because of that.⁵

The right to strike is not unlimited, however, and the Court’s Glacier opinion confirms this. For example, the right to strike does not include the right to use violence, does not allow the breach of a valid no-strike agreement, does not authorize violation of other federal laws, and does not include the right to strike in pursuit of other unlawful objectives. The Court in Glacier added that strikers may be liable for economic damage they cause to employer property if they fail to take reasonable precautions to avoid that damage.

Right to Strike Has New Limitation

In Glacier the Court focused on the underlying facts of the case to explain what sort of “reasonable precautions” the striking Union should have taken to protect employer property against “foreseeable and imminent danger.” The Court found it significant that drivers “abandoned their fully loaded trucks without telling anyone – which left the trucks on a path to destruction.” Further, the Union did not notify Glacier that trucks had returned to the employer’s site full of concrete. Justice Barrett explained that “the ‘reasonable precautions’ test does not mandate any one action in particular,” but that the Union’s actions here failed to pass this test. The Court explained that while there is no statutory duty to give notice of a strike outside of the healthcare context, failure to give notice under circumstances like this can be “relevant considerations in evaluating whether strikers took reasonable precautions, whether harm to property was imminent, and whether that danger was foreseeable.”

In this case, the Court explained, calling a strike after the concrete was loaded into the trucks “suggests that [the Union] failed to take reasonable precautions to avoid foreseeable, aggravated, and imminent harm.” This is particularly the case, the Court explained, where products are “perishable.” The Court distinguished Glacier from other cases where the Board held that strike conduct was protected “even when [the strikers’] decision to not work created a risk that perishable goods would spoil.” Justice Barrett explained that the drivers here, “prompted the creation” of concrete – a perishable product – by showing up to work and, in doing so, “not only destroyed the concrete but also put Glacier’s trucks in harm’s way.” Indeed, the Court held that far from taking reasonable precautions, the strike was executed in a manner designed to compromise the safety of the trucks and destroy the concrete. Ultimately, the Court concluded, “[b]ecause the Union took affirmative steps to endanger Glacier’s property rather than reasonable precautions to mitigate that risk, the NLRA does not arguably protect its conduct.” Thus, it held that the state court had erred in dismissing Glacier’s tort claims as preempted, and reversed the judgment of the Washington Supreme Court.

Implication for Employers

This decision will likely make it easier for employers to pursue damage claims against unions in state court. Conversely, it may make unions more wary of calling strikes that have the potential to damage employer property as the risk of litigation outside the Board’s processes might act as a deterrent. Going forward, this decision puts both employers and unions on notice that cases involving foreseeable damage to employer property, particularly where products are perishable, could proceed before a court instead of the NLRB.