On June 1, 2023, the United States Supreme Court issued its 8-1 decision in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174,1 holding that the National Labor Relations Act (“NLRA”)2 does not preempt an employer’s ability to bring state law tort claims when strikers fail to take “reasonable precautions” to protect their employer’s property. As a result of Glacier, it will likely be easier for employers to pursue damage claims against unions in state court for conduct during strikes that cause property damage.
Background
Glacier Northwest is a concrete seller and supplier based out of Washington that uses ready-mix trucks to prevent the concrete from hardening during transit. Glacier’s truck drivers are members of the International Brotherhood of Teamsters Local Union No. 174. After a collective bargaining agreement between Glacier and the Union expired, the Union called for a work stoppage, or a strike, on a morning when it knew that Glacier was mixing substantial amounts of concrete, loading that concrete into ready-mix trucks, and making deliveries. After the trucks were loaded for deliveries, the Union directed drivers to stop work. The striking drivers returned at least 16 fully loaded trucks of concrete without finishing deliveries.
Glacier had to react immediately. Concrete hardens quickly, but it also cannot be dumped randomly because concrete contains environmentally sensitive chemicals. Glacier’s emergency maneuvers managed to prevent damage to its trucks, but all of the mixed concrete hardened and was rendered useless.
The Lawsuit
Glacier sued the Union in Washington State court for intentional destruction of the company’s concrete under the theory that the conduct amounted to common law tort claims. The Union moved to dismiss Glacier’s claims because the NLRA preempted such claims. The trial court agreed with the Union, the appellate court reversed, and the Washington Supreme Court reinstated the trial court’s decision. The Washington Supreme Court held that “the NLRA preempts Glacier’s tort claims related to the loss of its concrete product because that loss was incidental to a strike arguably protected by federal law.”3 Glacier appealed to the United States Supreme Court, which granted certiorari.
The Supreme Court’s Ruling: Striking Employees Who Fail to Take Reasonable Precautions to Protect Against Foreseeable and Imminent Danger are Not Protected by the NLRA
The United States Supreme Court held that the NLRA did not preempt state tort law claims for intentional destruction of company property. When a state law claim goes directly to a court, rather than to the National Labor Relations Board (“NLRB” or the “Board”), the court applies the test set forth in San Diego Building Trades Council v. Garmon.4 Under Garmon, states cannot regulate conduct “that the NLRA protects, prohibits, or arguably protects or prohibits.”5 Thus, a party arguing for preemption under the NLRA bears the burden of (1) providing an interpretation of the NLRA that is not contrary to the statute, caselaw, or Board precedent and (2) putting forth sufficient evidence to allow the court to find that the NLRA protects, prohibits, or arguably protects or prohibits the conduct at issue. The Supreme Court in Glacier found that the Union passed the first test but failed the second.
First, the Court noted that the NLRA protects the right to strike.6 Thus, the Court analyzed whether the NLRA protected or arguably protected the right to strike when the Union put Glacier’s property at risk of foreseeable and imminent danger. The Court noted that the right to strike is not absolute: the NLRA does not shield strikers who fail to take “reasonable precautions” to protect the employer’s property from foreseeable, aggravated, and imminent danger due to the sudden work stoppage.7 Because the Union executed the strike to compromise the safety of Glacier’s trucks and destroy its concrete, the conduct was not arguably protected by the NLRA.
Although strikes are often planned at a time to maximize economic harm to the employer, the strike here involved more than a work stoppage when economic harm was foreseeable: the drivers prompted the creation of the perishable product when they arrived to work. The Court reasoned that “the Union took affirmative steps to endanger Glacier’s property rather than reasonable precautions to mitigate the risk” by striking after the drivers had loaded large amounts of concrete into the trucks.
Impact for Employers
After Glacier, employers will likely be more successful in pursuing claims for property damage in state court arising out of strike conduct if the union fails to take reasonable precautions to mitigate the risk of property damage during the strike.
