Management-side attorneys and the businesses that they represent will be pleased with the Supreme Court’s holding in Glacier Northwest, Inc. v. International Brotherhood of Teamsters.
The case concerned the issue of whether the National Labor Relations Act, 29 U.S.C. §§ 151–169 (“NLRA” or the “Act”), preempted a state tort claim seeking damages for harm suffered by their employer, caused by employees’ inaction in failing to deliver concrete that had already been loaded into the employer’s trucks or otherwise taking action to prevent the hardening concrete from damaging the trucks, thus intentionally destroying property owned by Glacier. Notably, the striking employees and their union knew that the trucks had been loaded when they began their strike. An eight-justice majority held that the union and its members were, on the facts of the case, not engaged in protected conduct as that term is defined under the NLRA. Justice Barrett delivered the opinion of the Court, in which the Chief Justice and Justices Sotomayor, Kagan and Kavanaugh joined. Justices Thomas, Gorsuch, and Alito concurred. As against this jurisprudentially diverse array, Justice Jackson was the only dissenter.
Conduct That Foreseeably Caused Harm to Employer Property Was Not Protected by the NLRA
Glacier Northwest is a concrete supplier that uses “ready-mix” trucks with rotating drums that prevent the concrete they contain from hardening during transport to construction sites. Upon the expiration of a collective bargaining agreement between a Teamsters local and the company, the union directed drivers to ignore a company directive to complete concrete deliveries in progress so as to prevent damage caused by hardening concrete. After executing emergency procedures in an attempt to ameliorate conditions, the company sued the union for damages in state court. The Supreme Court of Washington sided with the union’s argument that Glacier’s suit was preempted by the NLRA. The Supreme Court of the United States did not.
Preemption by a federal law generally occurs when it actually conflicts with state law. However, while a federal law generally preempts state law when the two actually conflict, the NLRA preempts state law even when the two only arguably conflict. San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959). Thus, the Union argued that the NLRA, which protects employees’ rights “to self organization, to form, join, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” rendered the drivers’ conduct to be protected conduct, thus depriving the state of the power to hold the union accountable for its members’ conduct during a strike.
The Supreme Court Took a Narrow View of “Garmon Preemption”
The Supreme Court soundly rejected the union’s defense. While the NLRA might protect the right to strike, that right is not absolute. The Court held that by initiating a mid-day strike and doing nothing to protect the company’s trucks from damage and loss occasioned by hardening concrete, the union intentionally coordinated with the employees it represented to destroy company property, and that such conduct is not protected by the NLRA. In dissent, Justice Jackson stated that she would read the Garmon case broadly, both to require the Court to defer to the NLRB, at least for the conduct of an administrative assessment, and, ultimately to afford protection to the Union’s conduct. However, it is manifestly clear that the vast majority of the Court views Garmon, if not as the “aberration” that several Justices see it as, then at least a precedent that should be narrowly applied.
What Glacier Northwest Means Going Forward.
In assessing the extent to which Glacier Northwest provides a meaningful restraint on union conduct during labor disputes that proximately leads to the destruction of a company’s property, there are several points of note. First, both the majority and the dissenter generally agree that collectively ceasing to work, thus allowing the mere despoiling of a company’s product, is protected concerted activity and thus does not in itself remove workers from the protection of the NLRA or preempt state tort law. It is the additional fact that the hardening concrete risked causing destruction of the company’s trucks that held the concrete that was determinative. It was the risk to company infrastructure, not just perishable product, that appears to have been critical to the majority’s holding. The dissenting justice would defer that determination to the National Labor Relations Board (“NLRB”) for analysis under its purported “reasonable-precautions principle,” but eight Justices clearly concluded that this fact was not disputable
Second, both majority and concurring opinions made it clear that Garmon preemption is something of an aberration that should be applied narrowly. The decision of the Washington State Supreme Court was therefore reversed, and the case remanded for further action in light of the Supreme Court’s holding. In that regard, it is worth paying attention to the concurring opinion of Justice Alito which Justices Thomas and Gorsuch joined. Justice Alito observed that the Court has “wisely decline[d]” to address Justice Jackson’s suggested deferral to the NLRB, but that if the state court on remand were to dismiss on that ground, the case “would be a good candidate for a quick return” to the Supreme Court.
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