In an almost[1] unanimous decision, the Supreme Court held that an employer could pursue tort claims against a union for destruction of property during a strike notwithstanding the broad doctrine of preemption under the National Labor Relations Act (“NLRA”). Glacier Northwest, Inc., v. International Brotherhood of Teamsters.
This decision is refreshing. One month ago, employers scratched their heads at how to hold employees’ bad behaviors in check when the National Labor Relations Board (“NLRB” or the “Board”) overturned its General Motors decision, which had taken a more reasonable view of employee misconduct from the employer’s perspective. See Lion Elastomers LLC In reversing General Motors, the Board endorsed offensive outbursts, including the use of racial epithets, in the course of “protected activity” potentially exposing employers to liability under Title VII and state anti-discrimination laws.
Glacier Northwest (“Glacier”), a concrete company, sued in state court claiming the Teamsters intentionally caused significant risks to its product and property by calling a work stoppage of truck drivers after the drivers had fully loaded trucks with perishable concrete. Glacier alleged the Teamsters knowingly and intentionally destroyed the concrete, committing common-law conversion and trespass to its property. A trial court dismissed the lawsuit on preemption grounds, and the Washington Supreme Court dismissal of Glacier’s case ultimately affirmed the decision, holding that “the NLRA preempts Glacier’s tort claims” because the loss “was incidental to a strike arguably protected by federal law.” 198 Wash 2d 768, 774 (Wash. 2021).
As a general rule, strike activity is protected by the NLRA. Labor disputes are typically adjudicated by the Board so long as the union’s activity is “arguably” protected or prohibited by the Act. See San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). So-called Garmon preemption provides unions with one of the broadest defenses to state court claims by an employer against a union, absent a claim of “mass picketing” or other breaches of the peace. In today’s decision, the Supreme Court, while acknowledging the broad protections afforded strike activity, explained that the protection was not unlimited, particularly where the union fails to take “reasonable precautions” to protect the employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work. Accordingly, in these circumstances, the Board did not need to adjudicate the case prior to Glacier’s claims being heard in state court.
While the Teamsters’ apparently willful attempt to destroy Glacier’s property can be litigated, the Court did not alter the general principle of Garmon. Typically, state law claims will yield to the NLRB’s adjudication. Still, it is heartening to know the Supreme Court seems to have a clear understanding when tortious conduct will lose the protection of the NLRA.
[1] While multiple opinions supported the outcome in various ways, only Justice Jackson filed a dissent.
