Nlra Case Notes

• Publication year: 2023
• Author: Maria Myers

NLRA CASE NOTES

AUTHORS^*

Maria Myers

Hannah Weinstein

COURT UPHOLDS CARMON TEST, BUT ALLOWS STATE TORT LAWSUIT

Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, 143 S. Ct. 1404 (2023)

In an 8-1 holding, the U.S. Supreme Court reversed and remanded a Washington Supreme Court decision concerning the provision in the National Labor Relations Act (NLRA) preempting an employer's state lawsuit asserting common law conversion and trespass to chattels for damages to the employer's product sustained during a strike.

The employer sells ready-mix concrete, which must be continuously rotated within its trucks and promptly delivered to customers once mixed, or else it will harden and damage the trucks. The union called for a strike while the employer was in the midst of mixing and delivering concrete, with some of the employees abandoning their trucks. The concrete, although removed from the trucks, ultimately hardened and became useless, and the employer sued the union in Washington state court alleging that the union intentionally damaged its property.

The union successfully moved to dismiss on the grounds that the NLRA preempted the suit pursuant to San Diego Building Trades Council v. Garmon.¹ Under Garmon, states cannot regulate conduct that it "protects, prohibits, or arguably protects or prohibits."

In its opinion, written by Justice Amy Coney Barrett and joined by Chief Justice John G. Roberts, Jr. and Justices Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh, the Court acknowledged and confirmed that, under Garmon, the NLRA preempts state law when the two arguably conflict.

The Court explained that to establish preemption, the union was required to:

• advance an interpretation of the Act not plainly contrary to the statute's language and that has not been rejected by the courts or the National Labor Relations Board (NLRB), and
• put forth enough evidence to enable a court to find the Act arguably protected the union's conduct.²

It held that the union met the first element, but not the second, because the NLRA does not protect 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."³

Treating the employer's allegations in the complaint as true on the appeal of the union's motion to dismiss, the Court determined that the union knew the concrete was highly perishable and if left in the employer's truck could cause considerable damage, and thus, the risk to the employer's trucks was foreseeable and serious.

The Court explained that the union failed to take reasonable precautions against this risk because it called for the strike when the employer was in the midst of mixing and delivering large quantities of concrete and did not take any minimal precautions against damage—such as informing the employer about which trucks were being abandoned or beginning the strike before the concrete was mixed.

The Court emphasized that the union's conduct was not even arguably protected by the NLRA because the employees reported for duty and pretended as if they would deliver the concrete, prompting the creation of the perishable product, and then engaged in the strike.⁴ This distinguished the case from those where there is simply a foreseeable risk of a loss of perishable products. Because the union "took affirmative steps to endanger Glacier's property rather than reasonable precautions to mitigate that risk," the strike

[Page 19]

was not arguably protected by the NLRA and the state lawsuit was not preempted.⁵

Concurring in the judgment, Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, questioned the breadth of the Garmon preemption over state tort claims and urged a reexamination of "Garmon's 'unusual' preemption regime."⁶ Justice Samuel A. Alito, Jr. also concurred in the judgment, joined by Justices Thomas and Gorsuch, highlighting that established Court precedent has long held the NLRA does not protect employees for "trespass or violence against the employer's property," and thus that Garmon does not preempt state action against such conduct.⁷

The sole dissenter, Justice Ketanji Brown Jackson, reviewed the history and structure of the NLRA, explaining the importance of allowing the NLRB to determine what activities it protects. Emphasizing the Board's expertise in deciding the fact-intensive question of whether certain strike conduct is protected and Congress's clear intent to leave such a question to the Board, she noted that after the Washington Supreme Court affirmed the dismissal of the employer's tort claims, the Board's General Counsel had issued a complaint taking the position that this strike was, indeed, protected.

Justice Jackson concluded that the complaint from the NLRB's General Counsel, which follows an investigation of the facts...