Supreme Court's Glacier Decision Melts Union's Preemption Defense Against Tort Liability

The U.S. Supreme Court on June 1, 2023, sent a concrete message to the American Labor Movement: exercise prudence. In Glacier Northwest, Inc. v. International Brotherhood of Teamsters, the court overturned a decision by the Washington Supreme Court and delivered a blow to the more radical elements of the labor movement that advocate for “extreme escalation” labor tactics.

Background

Glacier Northwest is a classic “ready mix” concrete contractor in the state of Washington. Glacier’s drivers are represented by Teamsters Local 174. Glacier and the Teamsters were involved in contract negotiations during the heart of the construction season in the peak of the pre-pandemic construction boom. Although the parties had arguably not reached impasse,[1] the Teamsters decided to stage a walkout on August 11, 2017. A mid-shift walkout is a dramatic “hardball” pressure tactic. Afterall, labor relations is not for the faint of heart. As one Teamster that I have faced over the table once said: “this ain’t a scrimmage.”

The Teamsters intentionally timed the walkout not just to pressure Glacier, but to harm the Company, and that circumstance is what set the Glacier case on a path from Washington state to Washington, D.C. At least that was what was claimed in the state court petition filed by Glacier. The walkout was scheduled during the Company’s prime concrete delivery time. The trucks were full and churning when the Teamsters walked off the job.

Hopefully the reader will indulge the author as I explain that as a teenager I worked for a concrete construction crew, so I am intimately and uncomfortably familiar with the vagaries of ready mix concrete. Here are some concrete facts about ready mix cement: depending upon the heat and humidity and the composition of the concrete, it can become hard at an alarmingly fast pace as soon as it leaves the cork screw churning of the delivery truck. And if you leave it too long in the truck, you will ruin not only the concrete, but also the truck.

The Teamsters scheduled the walkout to occur when Glacier’s trucks were fully loaded. Many drivers left the trucks without pouring or dumping the concrete. Glacier had to scramble to save its trucks. The concrete was a total loss.

Glacier sued the Teamsters in Washington state court alleging various tort claims for the intentional and negligent destruction of its property, amounting to conversion. The Teamsters predicably filed an unfair labor practice complaint with the National Labor Relations Board, claiming that Glacier’s law suit constituted unlawful retaliation against “concerted activity” protected by the National Labor Relations Act (NLRA). The Teamsters also filed a motion to dismiss the state tort claim alleging that it was preempted by the NLRA.

The Washington trial court sided with the Union and dismissed the tort claims. The state court of appeals reversed, and reinstated the lawsuit. The Washington Supreme Court reversed the lower court of appeals and dismissed the tort claim, relying on the U. S. Supreme Court’s long-standing preemption decision, San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959). It emphasized that because the conduct of the Teamsters was “possibly protected” by the NLRA, the state court had to take a hands-off approach and defer to the National Labor Relations Board. That lead the case to the U.S. Supreme Court.

Question Presented

The U.S. Supreme Court was presented with a seemingly simple question: Does the NLRA preempt an employer’s state tort claim against a union for intentionally destroying the employer’s property during a strategically timed strike?

Discussion

The U.S. Supreme Court emphasized that even conduct that is “arguably” protected concerted activity under the NLRA can give rise to liability in tort. The court held for the employer and sent the case back so the parties could fight it out in state court.

The court discussed in detail the corresponding interests and competing legal precedents when it comes to the arguably fine line between protected “concerted activity” and unprotected unlawful conduct. In the end, the court concluded that because the Teamsters had created the emergent situation that led to the destruction of the concrete, it could be sued for tortious conduct. The Union argued that its conduct was like walking off the job at a bakery or meat processor where perishable product would almost certainly be lost as a result of the work stoppage. The court rejected that argument because in Glacier, the drivers reported to work, duped the Company into filling the ready mix trucks, and then walked off. As the court put it, the drivers “created” the perishable product. The court stated: “Far from taking reasonable precautions to mitigate foreseeable danger to Glacier’s property, the union executed the strike in a manner designed to compromise the safety of Glacier’s trucks and destroy its concrete. Such conduct is not arguably protected by the NLRA; on the contrary, it goes well beyond the NLRA’s protections.”

Implications

The Glacier Northwest decision should serve as a wakeup call to tech savvy labor leaders. For reasons beyond the scope of this discussion, labor has been on the retreat in America for decades. With a sympathetic administration in the White House and a tight labor market, the labor movement is seeking to mount a turnaround.

The political polarization of the country has arguably helped the labor movement. But it has also unquestionably injected a more radical element into the movement. This element goes beyond demanding “fair” wages and working conditions; rather, this element involves or includes those who call for revolution, destruction of property, and intimidation, and in some cases threatening or inflicting, physical harm. Significantly, many of the leaders in this element of the labor movement are avid users of social media. The social media footprint can be useful in organizing and energizing. It can also provide helpful tracks for employers hunting for defendants in tort claim actions.

Glacier Northwest represents a Court-imposed prudential limitation on concerted protected activity and the outer area of federal preemption, which may serve as a braking mechanism on extreme labor organizing tactics.  

Navigating the legal and practical intricacies of labor-management relations “ain’t a scrimmage.”  Experienced management-side labor counsel is necessary to address these issues. If you have questions, Nyemaster’s Labor & Employment attorneys can help you address the changing dynamics of these developments.

[1] A strike or lockout short of a bargaining impasse is arguably an unfair labor practice or at least evidence of unlawful bad faith bargaining.