In Glacier Northwest v. Teamsters Local 174 (June 1, 2023), the U.S. Supreme Court considered whether to end Garmon preemption, or leave it intact & whether, more broadly, strikes in the private sector would routinely land a union in state courts answering to suits for damages brought by the company. The answer for now is that the NLRB will remain the decision-maker in these kinds of cases and the Court will not, at least for now, routinely open the doors of state courts for tort claims filed by companies in the event of a strike.
Some Background and the Decision.
Teamsters Local 174 called a strike (there was a factual dispute about whether proper advanced notice was given) and some striking employees assigned to cement trucks brought them back to the company's yard and left the trucks running (to prevent the cement hardening), but did not notify the company where the trucks were or otherwise try to prevent damage to the company's property. The company alleged some trucks could not be quickly located, and that the cement could not be delivered but had to be wasted, causing economic losses.
Consequently, the company sued the union in state court alleging tort damages because of the strike. The union filed for dismissal, asserting the NLRB had exclusive jurisdiction over labor disputes of this nature. The Washington state courts agreed with the union. The company appealed. Ultimately, the U.S. Supreme Court heard the case and determined preemption by the NLRB was not appropriate under the facts because the damages were caused by a “surprise” strike and the union had failed to take “reasonable precautions” to prevent foreseeable damage due to property destruction, fitting into a small exception to the NLRB’s exclusive jurisdiction, allowing suit in state court. See Bethany Medical Center 328 N.L.R.B. 1094.
The court’s majority decision leaves intact a legal doctrine known as Garmon preemption. That preemption maintains the NLRB as the decision-maker on what constitutes “reasonable precaution” in worker strikes and ensures that almost all strikes will continue to be protected. This is good news for workers and labor unions because the NLRB understands how to assess and analyze these issues in an appropriate way and rarely would require a union pay for damages in a strike case. In contrast, the elected judges in many states are aggressively anti-labor/anti-union, do not understand the competing interests at stake, and are overtly biased in favor of companies.
The Chamber of Commerce and other proponents of so-called “free enterprise” (anti-labor) had hoped to replace the NLRB’s long-established federal jurisdiction over all of these types of disputes with tort law litigation in state courts. They failed to achieve that goal through this decision, although there are at least three members of the court (and more likely five or six) who will be willing to go there with a different case, in a few years. This would follow the pattern of the Janus case development, gutting longstanding labor law precedent and weakening unions and employee rights.
What should labor unions do to reduce the risk of landing in state court after the Glacier Northwest decision?
Labor unions in the private sector can still go out on strike. As long as there is no agreed upon prohibition in a collective bargaining agreement or in state legislation, the right to strike can be exercised by the union. However, there are many considerations unions need to take into account to ensure workers are as protected as possible during a strike and that all procedural requirements under the NLRA, the collective bargaining agreement, and state law are met. If your union is thinking about going on strike, union officers/administrators should consult with legal counsel to ensure all necessary steps are being taken to protect striking members and the union. There is no way to ensure that a strike is completely risk-free, but engaging thoughtfully and in advance to make a plan, will help to ensure that the risks to union members and the union are mitigated.