U.S. Supreme Court Strikes a Chord for the Status Quo

By Tim Murphy - Skoler Abbott P.C.

June 28, 2023

When the Supreme Court of the United States (SCOTUS) took up the Glacier Northwest v. International Brotherhood of Teamsters Local Union No. 174 case last year, many labor law watchers assumed that big changes were in store for the law on strike protections. Of course, because SCOTUS is so selective about the cases that it takes, there is a tendency to assume that when it chooses to decide a case it does so in order to change the law. Well, you know what they say about those who assume.

On June 1, 2023, in an 8-1 decision, SCOTUS decided in Glacier Northwest v International Brotherhood of Teamsters Local Union No. 174 that the company could sue the union in state court for damages to its property due to a strike. This reversed the decision of the Washington Supreme Court, which had dismissed the lawsuit as preempted by the National Labor Relations Act (NLRA). The decision turned on the facts of the case and did not remake the law on strike protections.

Glacier Northwest’s (Glacier) truck drivers, represented by the International Brotherhood of Teamsters (union), deliver concrete to customers in ready-mix trucks (with the big rotating drums). When negotiations for a new collective bargaining agreement (CBA) broke down, and the CBA had expired, the union decided to strike. They had the right to do that, but the problem was how they did it.

On August 11, 2017, the drivers reported for work as usual. Glacier mixed all of the concrete for the day’s scheduled deliveries which it loaded on sixteen of its trucks. When the drivers were on the road but before the deliveries were made, the union called a strike without advance notice to the company. The drivers returned the trucks to the yard. Some of the drivers told their supervisors that their trucks were full of concrete, but others left their trucks in the yard without saying anything. Because concrete will harden eventually, even when in a truck with a rotating drum, the company had to institute emergency measures to dump  all the mixed concrete  – in an environmentally sensitive way – to protect the trucks from damage from hardened concrete. It managed to do so without any of the trucks being damaged; however, it lost a significant amount of time and money in wasted concrete. The company sued the union for the money it lost in state court in Washington.

The NLRA protects the right to strike, but there are limits to that protection. For instance, the NLRA does not protect a union from the consequences of failing to take “reasonable precautions” to protect an employer’s property from the foreseeable, aggravated, and imminent danger from a sudden strike.

The union successfully argued in Washington state courts that because its conduct was “arguably” protected by the NLRA, the company’s state law lawsuit for damages should be dismissed as preempted by the NLRA. The company appealed and SCOTUS chose to hear the appeal.  

SCOTUS held that the union failed to take reasonable precautions to protect Glacier against a foreseeable and imminent danger of property loss because the union “knew that concrete was highly perishable and that it can last for only a limited time in a delivery truck’s rotating drum” and that if it was not removed, it would harden and cause significant damage to the trucks. While unions do not usually have to give advance notice of a strike to employers, SCOTUS concluded that the way the strike was called, after the concrete had been mixed and loaded into trucks that were out for delivery, was designed to unreasonably increase the risk of property loss to the company.

The Justices of SCOTUS did not all agree on the outcome.  Five of the nine justices signed on to the majority opinion as written and three others agreed with the result, but not the reasoning that led to the result. Those three signaled in two concurring opinions that they would, perhaps, entertain greater restrictions on the right to strike.

Justice Ketanji Brown Jackson was the only justice to disagree with the outcome of the decision. In her dissenting opinion, she contended that the Court should not even be weighing in on this issue as it was for the National Labor Relations Board (NLRB)to handle in the first place. She argued that, through the NLRA, Congress intended the NLRB to decide the delicate issue of strike protections. The result of the Court’s 8-1 decision is that the company’s lawsuit for damages related to the strike will be reinstated and allowed to proceed in Washington state court.

While this decision may give unions contemplating a surprise strike against a company that deals in perishable goods pause, it is pretty much a restatement of settled law. A minority of justices may think that settled law should change, but for now, it hasn’t. This decision may not be exciting, but we still thought it was worth sharing with you as it is good news for employers.

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