by Raymond M. Baldino
At the end of its last term, the U.S. Supreme Court decided a much-anticipated case concerning the right to strike, Glacier Northwest v. Int’l Bhd. of Teamsters, Union Local 174.[1] In the end, the case went out with more of a whimper than a bang, while inserting a confusing addition to Garmon preemption under the National Labor Relations Act (NLRA). The good news for labor practitioners: a majority consisting of Justices Amy Coney Barrett (who wrote the opinion), John Roberts, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh upheld the doctrinal elements of preemption under the seminal San Diego Building Trades Council v. Garmon[2] and left the right to strike nominally unscathed.[3] Much work has been done analyzing these results, including on the apparent strategic vote maneuvering of Justices Sotomayor and Kagan to prevent more extreme views from prevailing.[4] As many have noted, it could have been worse – but still, where does it leave a labor law practitioner today?
Although there was no radical change in the preemption doctrine (which looks at whether state law interferes with federal labor rights) or the right to strike adopted in Glacier Northwest, it is easy to see how the Court could have pulled in that direction. Justices Clarence Thomas and Neil Gorsuch wrote a concurring opinion that would have replaced Garmon with a dramatically more limited preemption test and Justice Samuel Alito wrote a concurring opinion that, without replacing Garmon, would have sharply limited the right to strike.[v] Justice Ketanji Brown Jackson wrote a lone dissent.[vi]
To answer the question of where Glacier Northwest has taken us, a brief reacquaintance with the facts of the case and the relevant doctrine is necessary. A Washington state chapter of the Teamsters, Local No. 174, went on strike against Glacier Northwest, a concrete delivery company, timing the strike to begin after the workday had begun and concrete had been batched in the delivery trucks.[vii] After the union filed an unfair labor practice charge before the National Labor Relations Board (NLRB or Board), Glacier Northwest sued the union in state court, alleging that the union had timed the strike deliberately to sabotage the employer’s property, i.e. the batched concrete, by requiring the company to dispose of the concrete before it hardened.[viii] The company’s allegations focused on claims that the union had intended to destroy the batched concrete and interfere with a business contract.[ix] Glacier Northwest did not allege that the union’s activities deliberately created the risk of harm to the trucks if the concrete had not been disposed of in time, but that risk was referenced in the complaint.[x] The union moved to dismiss, arguing that the state tort action was preempted under the Garmon preemption doctrine, and the Supreme Court of Washington agreed. The U.S. Supreme Court decided to review the case on certiorari.[xi]
After the U.S. Supreme Court granted certiorari, the NLRB issued a complaint against Glacier Northwest, but the majority opinion declined to address in its opinion whether this development was a new basis for preemption – a circumstance Justice Jackson criticized in her dissent.[xii]
Garmon preemption holds that a state law claim is preempted by the NLRA when it concerns union activity that is “arguably protected” by the Act.[xiii] Garmon preemption serves to prevent state law from interfering with the NLRB’s exclusive jurisdiction to develop and administer a federal labor law, especially where concerted activity or claims that would give rise to unfair labor practice proceedings before the Board are involved.[xiv] Of course, the right to strike is protected under the Act, unless a union fails to take “’reasonable precautions’ to protect their employer’s property from foreseeable, aggravated, and imminent danger.”[xv] Examples of failing to take “reasonable precautions” have previously included foundry workers walking off the job when the foundry was full of molten steel, threatening damage to the employer’s plant, in Marshall Car Wheel & Foundry Co., Inc.[xvi] Or, in another example, workers who walked off a plant that handled hazardous chemicals without shutting down the equipment, creating a threat to the public, were also found not to have taken “reasonable precautions,” in the General Chem. Corp. case.[xvii] Simultaneously, a separate line of NLRB precedent holds that striking workers have no duty to prevent economic loss by way of causing the loss of a perishable product such as poultry, cheese and milk.[xviii]
The Supreme Court’s tortured rendition of the facts in Glacier Northwest transformed what should have been a simple case for Garmon preemption into a more complicated matter. The Glacier Northwest majority accepted the company’s assertion that the concrete disposal process was a “mad scramble.”[xix] And, in contrast to the company’s own allegations, the Court emphasized the risk to the company’s trucks as a harm deliberately calculated by the union, despite the fact that Glacier Northwest admitted that no truck had been damaged, and that it had successfully disposed of the concrete over the course of 5 hours.[xx] The Supreme Court’s analysis thus transformed the case into one more focused on destruction of property in the context of a strike. Although the majority opinion left intact case law that holds that a strike does not become unprotected if it causes loss of a perishable product, it created a razor-thin distinction to do so, finding that
"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."[xxi]
This emphasis on the potential risk to the concrete trucks appears to creates a narrow precedent that, at least on its surface, would not impact a typical strike: unless workers are involved in creating a perishable product and walking off the property in a manner that creates a foreseeable risk of harm to property due to the creation of that perishable product, state court allegations concerning strike activity should still be preempted by Garmon. At the same time, Justice Barrett did not make fully clear in her opinion whether the foreseeable risk of harm that triggered potential liability could lie solely in harm to the perishable product (the concrete) or to the equipment (the delivery trucks) – although presumably her analysis focused more so on damage to equipment.[xxii] Regardless, commentators have rightly focused on the fact that this narrow holding should mean strikes will still typically be protected, and that it could have been much worse for labor unions.[xxiii] After all, in contrast to the majority, Justice Alito would have ignored the precedent regarding perishable products altogether and held explicitly that the Teamsters’ damage to the concrete was clearly unprotected.[xxiv] Worse still, Justices Thomas and Gorsuch would have expressly overruled Garmon’s “arguably protected” test and replaced it with a much more restrictive analysis that asks only whether state and federal law “are in logical contradiction.”[xxv]
But despite the sigh of relief that many union proponents may have breathed at dodging a proverbial bullet, and despite the impression that many management-side advocates may have that Glacier Northwest is still a victory for their side, further reflection shows this decision is arguably problematic from all vistas. Justice Jackson wrote a thorough dissent that is worth reading carefully, and that in stark contrast to the otiose prescriptions of the majority opinion, serves as a guide map to the issues that must now be navigated.[xxvi] As Justice Jackson pointed out, the majority’s willingness to decide the case was particularly inappropriate in light of the pending Board complaint (in fact, on remand, it is possible that the State Court will find the matter preempted for this reason).[xxvii] But more importantly, and as Justice Jackson argued persuasively at length, it is clear that the Teamsters’ activity was at least “arguably protected.”[xxviii] In contrast to Justice Jackson’s well-reasoned dissent, there is no explanation or methodology in the majority’s opinion for how it determined at the pleading stage – and without deferring to the Board’s jurisdiction – to examine the more fact-intensive labor law issue that the Teamsters activity was not “arguably protected.”[xxix]
The majority opinion in Glacier Northwest decided the “arguably protected” question under Garmon without any of the fact-sensitive analysis that is the NLRB’s exclusive domain, making short shrift of the question of whether there was any “foreseeable harm” to property damage posed by the Teamsters’ strike.[xxx] Despite the pleadings reflecting that no Glacier Northwest trucks were damaged and that the company had at least five hours to unload the concrete without any damage, the Court concluded as a matter of law that Glacier Northwest had alleged activity that was unarguably unprotected.[xxxi] The Court held that Glacier’s batched concrete that had been destroyed was analogous to the molten metal in Marshall Car Wheel that posed a threat to the property in the foundry.[xxxii] This is ironic because ultimately the Board’s decision in Marshall Car Wheel still found the striker’s activity was protected for other reasons (namely that the company had not actually been concerned with the unprotected activity but had intended to discipline the workers for protected activity).[xxxiii] That the Court usurped the Board’s jurisdiction is further shown in the fact that the Court did not cite any state or federal court precedent on point in support of its analysis for when strike-related activity is “arguably protected” under these circumstances, only Board decisions.[xxxiv] It is also significant that the Court’s analysis seemed to take significant liberty with the record, as Glacier Northwest did not allege in its complaint that the Teamsters sought to or actually put its trucks at risk.[xxxv] In other words, what is most striking is the manner in which the Glacier Northwest Court decided the “arguably protected” question without deferring to the Board where it clearly should have, all while paying lip service to ordinary Garmon preemption.
Therefore, while the majority opinion in Glacier Northwest may have been the result of a fractious compromise that preserved Garmon preemption, that cannot serve as an apology for its faults. The Glacier Northwest decision implies that a state court can reflexively decide a labor preemption question by examining Board precedent itself in the context of facts raised at the pleading stage. But there is no reason to believe that state courts have the ability to assess complicated questions of whether strike-related activity is “arguably protected” or whether a union created a risk of “foreseeable harm” to employer property. These questions have been vested in the federal agency that oversees labor law, the NLRB, because the answers turn on its intimate understanding of the sometimes-arcane labor doctrine. The answers also require knowledge and experience in untangling the factual intricacies of how workplaces actually work. The result from the Glacier Northwest decision is an invitation for employers to raise the argument in their pleadings that some activity in a strike created the risk of “foreseeable harm” to employer property. An additional problem is that there is no clear guidance after Glacier Northwest as to what type of allegations of foreseeable harm arising from a strike are sufficient to survive preemption, whether to employer equipment and property, or to a perishable product, or even to other types of harms.
The Glacier Northwest case is likely to create confusion over the “arguably protected” test under Garmon. While analyzing such preemption was always complicated, most would have previously considered a matter that stated a prima facie unfair labor practice charge adopted by the Board to generally qualify for Garmon preemption. Glacier Northwest, however, throws that presumption into question. The Glacier Northwest Court simply did not address the fact that it was holding that strike activity was not “arguably protected” when it was already the subject of a pending Board complaint.
Optimists may content themselves with the determination that the Court meddled into an area that it does not fully understand, and that most lower courts will continue to afford the broad deference called for by Garmon. Other practitioners may glean from the opinion the need to ensure that a complaint is issued by the NLRB before seeking dismissal (because labor preemption can be raised at any stage in the proceeding under a motion to dismiss for lack of subject matter jurisdiction). Hopefully the principle still stands that with an NRLB complaint pending at the time preemption is sought, Garmon preemption is all but assured. In addition, state level anti-injunction acts (i.e. mini-Norris-LaGuardia statutes) also serve as a powerful tool to curtail many strike-related tort lawsuits while a strike is ongoing.[xxxvi] Regardless, the only certainty following the Glacier Northwest decision is that this area has become more uncertain, and there is a real possibility that opportunistic lawsuits will be ventured to test the new boundaries of the law.
Raymond M. Baldino is an associate at the law firm of Zazzali P.C. in Newark.
Originally published in the New Jersey Labor and Employment Law Quarterly, Vol. 45, No. 2 (Feb. 2024).
[1] 598 U.S. 771 (2023).
[2] 359 U.S. 236 (1959).
[3] Glacier Northwest, supra n.1, at 784-85.
2 See, e.g., Michael Strom, Glacier Northwest Could Have Been Worse, But it’s Still Bad (Jun. 6, 2023) available at onlabor.org/glacier-northwest-could-have-been-worse-but-its-still-bad/; Ian Millhiser, The Supreme Court deals another blow to labor unions (Jun. 1, 2023) available at vox.com/scotus/2023/6/1/23745372/supreme-court-unions-labor-strike-glacier-northwest-teamsters-amy-coney-barrett.
[v] Glacier Northwest, supra n.1, at 785 (Thomas, J., concurring); id. at 788 (Alito, J., concurring).
[vi] Id. at 789 (Jackson, J., dissenting).
[vii] Id. at 774-75.
[viii] Id. at 775.
[ix] A copy of the complaint can be found in the Joint Appendix on the Supreme Court’s website. See supremecourt.gov/DocketPDF/21/21-1449/244539/20221101152859725_21-1449%20-%20Joint%20Appendix.pdf at 5-27.
[x] Glacier Northwest, supra n.1, at 775.
[xi] 143 S. Ct. 82 (2022).
[xii] Glacier Northwest, supra n.1, at 798 n3. (Jackson, J., dissenting).
[xiii] Garmon, supra n.2, at 245.
[xiv] Id. at 243-44.
[xv] Glacier Northwest, supra n.1, at 781 (quoting Bethany Medical Center, 328 NLRB 1094 (NLRB 1999)).
[xvi] 107 NLRB 314 (1953).
[xvii] 290 NLRB 76 (1988).
[xviii] Glacier Northwest, supra n.1, at 782.
[xix] Id. at 778
[xx] Id.
[xxi] Id. at 783 (emphasis added).
[xxii]See id. at 785.
[xxiii] The author attended a conference recently in which the union attorneys who litigated the Glacier Northwest case emphasized precisely these points.
[xxiv] Glacier Northwest, supra n.1, at 788-89 (Alito, J., concurring).
[xxv] Id. at 788 (Thomas, J., concurring).
[xxvi] Id. at 789 ff (Jackson, J., dissenting).
[xxvii] Id. at 790-91 (Jackson, J., dissenting).
[xxviii] Id. at 796-99 (Jackson, J., dissenting).
[xxix] Id. at 774-85.
[xxx] Id. at 782-83, 785.
[xxxi] Id. at 785.
[xxxii] Id. at 781.
[xxxiii] Marshall Car Wheel, supra n.16, at 318-19.
[xxxiv] See id. at 781-82.
[xxxv] See supra n.9.
[xxxvi] New Jersey’s anti-injunction act can be found at N.J.S.A. 2A:15-51 to -58.
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