on Jun 2, 2023
at 12:59 pm
The Glacier Northwest concrete works in Kenmore, Wash. (Joe Mabel via Wikimedia)
In an 8-1 opinion on Thursday, the justices provided a new definition to the limits on the right to strike under federal labor law. At issue in Glacier Northwest v. International Brotherhood of Teamsters, Local Union 174was whether an employer could sue its employees’ union under state law for damage the employer incurred as a result of the union’s strike. The case produced a surprisingly broad majority agreeing that the strike at issue was not even arguably protected by the National Labor Relations Act. Only Justice Ketanji Brown Jackson dissented.
Federal labor law normally precludes any application of state law to labor activity under a doctrine called “Garmon preemption.” The workers in this case, who drive concrete mixers, went out on strike. Drivers allowed Glacier to load their trucks with concrete. At the appointed hour for the strike, several drivers drove their trucks back to Glacier’s headquarters and walked off the job. The company was unable to deliver the concrete and some of it hardened, requiring the company to scramble to find a way to safely dump the concrete, destroy it, and cart it away.
Glacier sued the union in state court for “tortious destruction” of its property – the spoiled concrete. The Washington Supreme Court dismissed the case, finding that it wasn’t appropriate to apply state tort law to a labor dispute even arguably covered by NLRA under Garmon.
In a decision by Justice Amy Coney Barrett that was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh, the court held that Glacier could sue the union in state court for damages because the Teamsters’ strike was not even arguably protected by the NLRA. The court ordered the case remanded to the state court for further proceedings.
The court’s decision rests on a fact-specific assessment of whether the Teamsters took “reasonable precautions” to protect Glacier’s property from “foreseeable, aggravated, and imminent danger due to the sudden cessation of work.” The National Labor Relations Board – the federal agency responsible for enforcing labor law — has long held that unions that fail to take “reasonable precautions” may not be protected by the NLRA when strikes lead to damage to perishable goods or property. The court’s decision on Thursday relied on Glacier’s allegations that the Teamsters purposely timed the strike to ensure that the concrete would harden by choosing to strike only after Glacier had “batched” the wet concrete into the trucks.
The majority distinguished a long line of cases in which the NLRB had held that the NLRA protected strikes that resulted in the loss of perishable goods like slaughtered poultry and fresh milk. Here, the majority found that the union’s decision about when to start the strike resulted not only in the destruction of a perishable product, like in the poultry and milk cases, but that – unlike the other perishable goods cases – the decision about timing also “prompted the creation of the perishable product.” Specifically, the court found determinative and distinguishing that the Teamsters allowed Glacier to batch the wet concrete when they knew that they had no intention of delivering the concrete and that the result would likely be spoiled concrete and possibly damaged trucks. The majority then sent the case back to the state court for it to consider Glacier’s tort suit.
Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, agreed with the result that the majority reached but not its reasoning. Alito explained that he would have allowed Glacier’s tort suit to proceed based simply on a finding of intentional damage to the concrete. Thomas, in a separate opinion joined by Gorsuch, urged the court to reconsider Garmon preemption in a future case.
In her first solo dissent as a justice, Jackson faulted the majority for ignoring the fact that the NLRB had undertaken its own investigation of the facts since Glacier filed its tort suit. The agency found that those facts supported the issuance of a complaint alleging that Glacier had filed the tort suit to retaliate against the Teamsters for striking. Implicit in the NLRB’s complaint, Jackson found, is a conclusion that the strike is arguably protected. Once the NLRB has even nodded in the direction of protection for a strike, Jackson said, the it should be given the opportunity to resolve the issue and require the state court to engage in a “jurisdictional hiatus.” Jackson admonished the majority for not following precedent. “Garmon makes clear that we have no business delving into this particular labor dispute at this time,” she wrote.
Jackson also disputed the majority’s characterization of the facts. She wrote that the Teamsters’ handling of the concrete was well within the lines drawn by the other perishable-goods cases. In her most strongly worded passage, Jackson accused the majority of requiring workers to undercut their own power by giving notice of their intent to strike. “Workers are not indentured servants,” she wrote, “bound to continue laboring until any planned work stoppage would be as painless as possible for their master.”
The majority opinion leaves open a number of questions. As for what comes next, it could be that the state court takes cognizance of the NLRB’s proceedings and puts the tort suit on hold. The tort suit could also go forward, even if that risks an inconsistent NLRB decision, or the state trial court could do more factfinding to make a new assessment of whether the strike activity is arguably protected. As for the possible consequences, employers and state courts could read the opinion as a highly fact-specific one with little impact on other strikes. Or it could open the door to employers trying to expand the impact by filing many more tort suits over strikes and it could lead to fewer strikes as unions shy away from the liability risk.
While the basic right to strike remains intact following the court’s decision, Glacier fits the pattern of this court: chipping away at labor rights. Sometimes the justices do it in big chunks and sometimes in smaller ones. But this case, like the others, moves in the same direction.