Written by Jonathan Turner and William S. Lisa

The Supreme Court’s June 1, 2023 decision in Glacier Northwest, Inc. v. International Brotherhood of Teamsters may provide employers with an additional avenue of recourse when dealing with strikers engaging in unlawful behavior not specifically prohibited by the National Labor Relations Act (the “NLRA” or the “Act”). 

In a decision joined by five Justices, and a judgment joined by eight, the Court held that employer Glacier Northwest, Inc.’s tort claims against Teamsters Local 174 for unprotected strike activities were not preempted by the NLRA, even under the expansive Garmon doctrine of preemption.

Under the Garmon doctrine, a claim is preempted whenever the NLRA “arguably protects or prohibits” the conduct alleged.  A party asserting preemption under Garmon must advance an interpretation of the NLRA that is not “plainly contrary” to the language of the Act and that has not been “authoritatively rejected.” The party asserting preemption must also produce enough evidence to allow a court to find that the NLRB could reasonably uphold a claim based on the statutory interpretation it advances.  If the court determines that the party seeking preemption has satisfied this burden, the claim is preempted, and can only be litigated in court if the National Labor Relations Board (the “NLRB” or the “Board”) later finds that the alleged conduct is not in fact protected or prohibited by the NLRA.

In Glacier Northwest, the Court applied the Garmon doctrine, but found that the union’s alleged conduct was not arguably protected, and thus Glacier Northwest Inc.’s claims were not preempted. According to the complaint, the union called for a work stoppage when the company was in the midst of mixing substantial amounts of highly perishable concrete, and loading the concrete into trucks operated by the union for delivery.  Many of the drivers abandoned their trucks in the midst of deliveries, and many did so without providing any warning or notice.  The Company had to scramble to set up bunkers where the concrete could be dumped before harming the trucks.  While the company was successful in dumping the concrete before it damaged its trucks, the concrete itself was destroyed.

The company filed suit in Washington state court, alleging that the union had intentionally destroyed the concrete, and asserting causes of action for common law conversion and trespass to chattels. The trial court granted the union’s motion to dismiss on the grounds that the claims were preempted.  After reversal by an appellate court, the Washington Supreme Court affirmed the trial court’s ruling.  The Supreme Court granted cert. to resolve whether the NLRA preempted claims alleging intentional destruction of property during a labor dispute, and held that they did not, reversing the Washington Supreme Court’s decision and remanding the case for further proceedings.

Applying Garmon, the Supreme Court found that the conduct alleged by the company – the intentional destruction of employer property – was not arguably protected by the NLRA, and thus the company’s claims were not preempted.  In reaching this conclusion, the Court affirmed NLRB case law holding that the NLRA does not protect strikers who fail to take “reasonable precautions” to protect their employer’s property from imminent danger resulting from work stoppage.  The Court found that the union did not take such reasonable precautions, and instead found that the union “executed the strike in a manner designed to compromise the safety of Glacier’s trucks and destroy its concrete.”

While the Court did not overrule the long line of Board precedent that permits unions to strike without notice, and at any point during the day, the Court did find that even permissible union conduct could be relevant in determining whether the union failed to take reasonable precautions.  Thus the Court cited the union’s “decision to initiate the strike during the workday and failure to give Glacier specific notice” as “relevant considerations” in its determination.  Because the union failed to take reasonable precautions to prevent damaging employer property, its conduct was not protected by the NLRA, and the company’s claims were not preempted. 

The Court’s opinion is notable if only for the fact that it permitted the employer’s lawsuit to survive a motion to dismiss despite Garmon’s expansive preemption doctrine, which prevents most labor disputes from being litigated outside of the NLRB.  As a result of the Court’s decision,employers subjected to unlawful striking activity can seek recourse outside of the NLRB where the employer suffers property damage as a result of the striking employees’ failure to take reasonable precautions to prevent harm to the employer’s property.  However, the Court’s decision in Glacier Northwest may have also created a wedge to for employers to litigate other unlawful strike conduct outside the NLRB. 

In light of the Court’s holding, courts may be increasingly inclined to adjudicate employer claims alleging common law tort and statutory violations based on strike conduct unprotected under Board precedent.  Whether courts will begin to recognize additional bases for litigating labor disputes by applying the Court’s reasoning, or will limit Glacier Northwest’s holding to situations specifically alleging the intentional destruction of property has yet to be seen.  But in either case, more employer suits are likely to follow.