The Supreme Court has granted certiorari in its first major labor law case of the 2022–2023 Term. In Glacier Northwest, Inc. v. International Brotherhood of Teamsters, an employer is suing a union for property damage, alleging that striking truck drivers intentionally abandoned trucks filled with concrete, which later hardened and became unusable. The union argues, and the Washington Supreme Court agreed, that the employer’s tort suit is preempted because the strike constituted at least arguably protected activity under the NLRA.

The Court granted cert to consider: “Does the [NLRA] impliedly preempt a state tort claim against a union for intentionally destroying an employer’s property in the course of a labor dispute?”

The Concrete Facts

Glacier Northwest is a business in Washington state that produces and delivers custom batches of ready-mix concrete. In August 2017, truck drivers working for Glacier held a one-week strike during negotiations for a new collective bargaining agreement. On the morning of the first day of the strike, drivers were in various stages of loading concrete onto trucks, en route to delivery sites, or at delivery sites offloading concrete. As the work stoppage began, all drivers returned their trucks to Glacier’s plants.

Mixing and delivering concrete is time sensitive. Left stationary, concrete hardens in 20-30 minutes. Agitation by drum mixers on trucks significantly extend this window, but even mixed concrete hardens eventually and may damage the truck drum. To prevent such damage, following a delivery, drivers at Glacier were required to offload any remaining concrete and rinse the drum. Concrete also had to be delivered the same day it was mixed.

Glacier alleges that at least 16 drivers returned trucks fully loaded with concrete, including nine drivers who did so without providing notice to Glacier. At least some concrete hardened and became unusable, requiring Glacier to have it hauled away and discarded offsite. Although none of its trucks were damaged, Glacier was not able to complete its concrete deliveries that day. Local 174 asserted in its petition opposing certiorari that its drivers purposely left the trucks running, on-site, to allow Glacier ample time to move the cement before it hardened.

Glacier sued the Teamsters in state court for conversion and trespass, as well as conspiracy to commit conversion and trespass, arguing that Local 174 intentionally timed its strike during the delivery process to destroy the concrete. Local 174 responded that state court adjudication of Glacier’s claims risks interference with NLRB jurisdiction. The case reached the Washington Supreme Court, and continues to the United States Supreme Court, on a motion to dismiss for lack of subject-matter jurisdiction due to NLRA preemption.

The Washington Supreme Court’s Reasoning

The standard for NLRA preemption comes from the Supreme Court’s 1959 case, San Diego Building Trades Council v. Garmon, which held that “[w]hen an activity is arguably subject to § 7 or § 8 of the Act,” state and federal courts “must defer to the exclusive competence of the National Labor Relations Board” to avoid interfering with national labor policy. Under Garmon preemption, a party arguing its activity is arguably protected must advance an interpretation of the NLRA the Board has not “authoritatively rejected.” Garmon preemption is notably broad, and is one reason why federal labor law frequently preempts attempts to regulate labor relations at the state and local level, as Professor Sachs has previously discussed here at OnLabor. 

However, the Supreme Court has set out two exceptions to Garmon preemption: first, where the issue is peripheral to the NLRA, or second, where “the regulated conduct touche[s] interests [] deeply rooted in local feeling and responsibility.” 

In a unanimous opinion considering whether Glacier’s claims were preempted, the Washington Supreme Court noted it has a “general prejudice against preemption,” but must nonetheless respect the Board’s expertise in interpreting national labor law, as “courts are not the proper forum for deciding whether particular conduct is subject to section 7 … in the first instance.”

First, the court rejected Glacier’s argument that state interests in protecting private property placed its suit within the “local feeling” exception to Garmon. Even assuming Glacier’s asserted facts as true, the court distinguished Local 174’s conduct from the kind of “tortious conduct marked by violence or outrageousness” that the Supreme Court has previously stated avoids preemption due to state interests in maintaining “domestic peace.” The mere description of Local 174’s conduct as “willful and intentional” was not controlling; what was critical, instead, was the strike context, which differentiated “incidental destruction of products during a strike” from “property damage for its own sake.” Unlike the latter, the former was “not clearly … within the ‘local feeling’ exception.”

Second, the court found Local 174’s conduct was “arguably protected” under Garmon. Glacier’s claims invoked two competing principles in Board precedent: unions have a legitimate interest in inflicting economic harm as a bargaining tactic, but employees must nonetheless take “reasonable precautions” to protect employer property. Without deciding whether Local 174 had fulfilled its duty of “reasonable precautions,” the court noted that in analogous cases concerning perishable items like milk or cheese, the Board has stated that “possible loss of perishable product” does not render a strike done for bargaining purposes unprotected. Since Local 174’s strike was therefore not clearly unprotected, Garmon preempted Glacier’s tort claims. A more definite answer as to whether Local 174’s activity was protected or not, according to the court, required a fact-specific determination by the Board based on labor policy.

Finally, the court found that the Board’s inability to provide Glacier with damages did not bar preemption of the state tort claims, as this was an argument the Supreme Court rejected in Garmon itself. Glacier also could not argue that it had no means of raising its property damage claims to the Board, as Local 174 had already filed ULP charges against Glacier for disciplining some of the drivers who returned filled trucks. To the court, that the Board would eventually rule on these ULPs and necessarily consider whether the strike activity was protected only exacerbated the risk of conflict should the state court consider Glacier’s claims.

The court dismissed Glacier’s tort claims accordingly, with no determination on the merits.

SCOTUS Grants Cert

The Supreme Court granted Glacier’s cert petition on October 3 and has not yet scheduled oral argument in the case. Given the complexity of Glacier Northwest, the Court may rule narrowly and sustain Garmon preemption as it stands, but hold that this particular case cannot be determined on a motion to dismiss due to factual disputes regarding the intentionality of the alleged property damage. Or the Court may rule broadly and declare that an increased range of employer property interests fall outside of Garmon preemption. 

The author was previously a legal intern at Barnard Iglitzin & Lavitt LLP, which represented Local 174 at the Washington Supreme Court. This post is based exclusively on publicly available sources.