In Glacier Northwest, Inc. v. Teamsters, with an 8-1 decision, the U.S. Supreme Court recently clarified that a union’s conduct during a strike that intentionally (or at least unreasonably and foreseeably) causes financial or property harm to the employer is not protected under the National Labor Relations Act (NLRA). This lawsuit resulted in the reinstatement of a suit against a Washington union in state court for damages. The Court in Glacier Northwest was asked to consider a lawsuit arising from a concrete workers’ strike in 2017. A critical factor for the Court was the rapid perishability of concrete once mixed and placed in the trucks for delivery, and the timing of the strike. Concrete will set even when being continuously turned in the trucks and will set rapidly when the trucks are deactivated. If still in the trucks when set, the trucks can be severely damaged. Equally important was the fact that concrete can only be disposed of in particular locations and a specific manner due to the environmental hazards.
Glacier (the employer) and Teamsters Local 174 had been negotiating to replace an expired contract, and the negotiations had begun deteriorating. On August 11, 2017, the Union signaled for a work stoppage during the workday, knowing that Glacier was in the process of mixing, loading, and delivering multiple batches of concrete. Glacier instructed the workers to continue with the deliveries, but the Union instructed the workers to ignore Glacier’s orders. Drivers out on delivery returned to the yard with trucks full of wet, mixed, and quickly setting concrete. According to the complaint, at least nine drivers simply abandoned their trucks at the direction of the Union, without informing Glacier management, while full of mixed concrete. In a “mad scramble,” Glacier managed to search for and locate the loaded trucks, construct bunkers to offload the concrete, and prevent damage to the trucks. However, the value of the concrete itself was a total loss. Glacier sued in Washington state court, arguing that the intentional destruction of Glacier’s property gave Glacier a right to recover under theories of conversion and trespass to chattels (common law tort claims).
The Union moved to dismiss the lawsuit, arguing that the NLRA preempted state law claims when the NLRA at least arguably protects the striking workers’ conduct. Federal preemption occurs when a federal law conflicts with a state law, and the federal law will control. The NLRA preemption is even broader, covering conduct “that the NLRA protects, prohibits, or arguably protects or prohibits.” The trial court agreed with the Union that the NLRA preempted Glacier’s state law claims, dismissing them entirely. While the Washington Court of Appeals reversed and reinstated the claims, ultimately the Washington Supreme Court affirmed the trial court and the dismissal of Glacier’s claims.
Because the issue involved federal law, Glacier sought review by the U.S. Supreme Court, which accepted the case, specifically considering whether the NLRA arguably protected the Union’s conduct. While the NLRA generally protects a worker’s right to strike, it does not shield strikers who fail to take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work. The Supreme Court found that Glacier had alleged facts indicating the Union did not take reasonable precautions. In fact, the allegations indicated the Union intended the strike to cause property damage.
[T]he Union executed the strike in a manner designed to compromise the safety of Glacier’s trucks and destroy its concrete, therefore rendering the conduct unprotected. Given the lifespan of wet concrete, Glacier could not batch it until a truck was ready to take it. So by reporting for duty and pretending as if they would deliver the concrete, the drivers prompted the creation of the perishable product. Then, they waited to walk off the job until the concrete was mixed and poured in the trucks. In so doing, they not only destroyed the concrete but also put Glacier’s trucks in harm’s way.
The Court recognized that many strikes will necessarily affect perishable goods, but in the above case, the timing of the work stoppage was designed to maximize the chance of loss because the Union waited to call it until after Glacier had created the perishable product by mixing the concrete. The Court contrasted this situation from strikes where loss of perishable goods is merely an unavoidable result of the strike, such as striking workers at a dairy processing facility. Because the Union took affirmative steps to endanger Glacier’s property—Glacier alleged that the Union timed the strike with the goal of destroying the property—versus timing the strike to mitigate the risk of destruction of property, the strike was not protected under the NLRA. As a result, the state law claims were not preempted, and Glacier was not precluded from continuing its suit against the Union. Glacier did not (and has not) yet succeeded in its state law claims, but the Court confirmed Glacier would be at least allowed to pursue those claims.
Takeaway for Employers
Employers faced with the possibility or reality of a strike or work stoppage should take some solace in knowing that unions and their members cannot use the strike or stoppage to intentionally or unreasonably create a foreseeable danger to products or property. This is particularly important for those employers who produce or process perishable goods in a manner reliant on the continuous efforts and coordination of employees. Strikes in many cases may require employers shut down or reduce production and may result in loss of some perishable goods. Incidental loss as a result of a strike likely would not remove the strike from the protection of the NLRA. However, unions and their members should be wary of timing strikes in a punitive, damaging manner unprotected by the NLRA.
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