Supreme Court of the United States

“ The Union is swinging at a straw man. It casts this case as one involving nothing more than a foreseeable risk that the employer’s perishable products would spoil. But given the lifespan of wet concrete, Glacier could not batch it until a truck was ready to take it. So by reporting for duty and pretending as if they would deliver the concrete, 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. ”

“ The right to strike is fundamental to American labor law. Congress enshrined that right in the National Labor Relations Act (NLRA) and simultaneously established the National Labor Relations Board to adjudicate disputes that arise between workers and management. That decision reflected Congress’s judgment that an agency with specialized expertise should develop and enforce national labor law in a uniform manner, through case-by-case adjudication. For its part, this Court has scrupulously guarded the Board’s authority for more than half a century. ”

“ Importantly, these kinds of questions not only involve making nuanced factual distinctions but also demonstrate that applying the Board’s reasonable-precautions precedents is, at bottom, a line-drawing exercise. Under circumstances like these, a court can confidently declare that a union’s conduct is not even arguably protected for Garmon purposes only where the allegations make out a clear Fansteel claim or where the alleged facts implicate a reasonable-precautions case that is directly on point. ”

“ When employees stop working, production may halt, deliveries may be delayed, and services may be canceled. At the risk of stating the obvious, this means that the workers’ right to strike inherently includes the right to impose economic harm on their employer.
Congress was well aware that organized labor’s exercise of the right to strike risks harm to an employer’s economic interests. ”

“ But, as discussed, the Garmon rule is not a standard preemption doctrine; it is different because it is doing different work. Garmon protects Congress’s judgment that the Board, not state or federal courts, should be generally responsible for the development of our Nation’s labor law. The required pause when Garmon’s “arguably protected” test is satisfied allows for efficient resolution of the dispute prior to the expenditure of state judicial resources, and the temporary nature of the pause makes it narrower, not broader, in effect than ordinary preemption. ”

“ Once the strike was underway, nine of the Union’s drivers abandoned their fully loaded trucks without telling anyone—which left the trucks on a path to destruction unless Glacier saw them in time to unload the concrete. Yet the Union did not take the simple step of alerting Glacier that these trucks had been returned. Nor, after the trucks were in the yard, did the Union direct its drivers to follow Glacier’s instructions to facilitate a safe transfer of equipment. To be clear, the “reasonable precautions” test does not mandate any one action in particular. ”

“ The Board has further recognized a narrow duty that arises if a sudden cessation of work risks foreseeable, imminent, and aggravated harm to persons, premises, or equipment. Beyond this narrow reasonable-precautions requirement, however, employees have no obligation to protect their employer’s economic interests when they exercise the right to withhold their labor. ”

“ Glacier Northwest, a concrete company, depends on its truck drivers to deliver concrete to customers in a timely manner. But when relations between Glacier and its drivers soured, the drivers went on strike. Their labor union allegedly designed the strike with the intent to sabotage Glacier’s property. Although Glacier managed to avoid damage to its delivery trucks by deploying emergency maneuvers, the concrete that it had already produced that day went to waste. Glacier sued the union in state court for destroying its property. ”

“ That the drivers returned the trucks to Glacier’s facility does not do much for the Union—refraining from stealing an employer’s vehicles does not demonstrate that one took reasonable precautions to protect them. And Glacier’s allegations do not support the Union’s assertion that all of the drivers left the drums rotating. The Union relies on a vague remark by an unspecified Union agent to another unspecified person to leave a truck running. ”

“ But the narrow duty that Marshall Car Wheel and its progeny impose does not—and cannot—displace the general rule that labor strikes are protected even when the workers’ withdrawal of their labor inflicts economic harm on the employer. So the Board has also repeatedly held that employees have no duty to prevent the loss of perishable goods caused by their sudden cessation of work. ”

“ Glacier is a concrete-delivery company whose drivers are responsible for delivering wet concrete, so it is unremarkable that the drivers struck at a time when there was concrete in the trucks. While selling perishable products may be risky business, the perishable nature of Glacier’s concrete did not impose some obligation on the drivers to strike in the middle of the night or before the next day’s jobs had started. ”

“ Where I disagree with the majority is the conclusion it draws from the fact that the batched concrete also risked harm to the drivers’ trucks, at least as alleged in Glacier’s complaint. The majority repeatedly ties the loss of the concrete—in particular, the risk that it would harden in the trucks—to the alleged risk of harm to the delivery trucks themselves. [8] But, to me, the alleged risk of harm to Glacier’s trucks involves a relatively complex factual analysis under the Board’s reasonable-precautions principle. ”

“ After Glacier combines the raw ingredients—cement, sand, aggregate, admixture, and water—in a hopper, it transfers the resulting concrete to one of its trucks for prompt delivery.
In this business, time is of the essence. Concrete is highly perishable—it begins to harden immediately once at rest. Ready-mix trucks can preserve concrete in a rotating drum located on the back of the truck, but only for a limited time. If concrete remains in the rotating drum for too long, it will harden and cause significant damage to the truck. ”

“ Congress’s incorporation of Fansteel’s limitation into the NLRA establishes that, while employees have the right to withhold their labor peaceably, subsequent affirmative acts of violence, or seizure of an employer’s premises, are not protected labor practices. ”

“ I agree with the majority that the risk of losing the batched concrete alone would not be sufficient to divest the striking drivers of statutory protection. As Glacier acknowledges, wet concrete is a perishable good. Ibid. And the Board has repeatedly reaffirmed that the loss of such perishable goods due to a mere work stoppage does not render a strike unprotected. ”

“ A third covers situations “where the regulated conduct touche [s] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction,” a court cannot conclude that Congress “deprived the States of the power to act.” ”

“ We granted certiorari to resolve whether the NLRA preempts Glacier’s tort claims alleging that the Union intentionally destroyed its property during a labor dispute. 598 U. S. ___ (2022) .
II
As the party asserting preemption, the Union bears the burden of (1) advancing “an interpretation of the [NLRA] that is not plainly contrary to its language and that has not been ‘authoritatively rejected’ by the courts or the Board,” and then (2) putting forth “enough evidence to enable the court to find that” the NLRA arguably protects the drivers’ conduct. ”

“ Davis, 476 U. S. 380, 396 (1986) . The upshot of this approach appears to be that the scope of the NLRA’s pre-emption of state-court jurisdiction over state claims is defined—not by the statutory text—but by “penumbra [s] ” that wax and wane as the Board develops, or declines to develop, its own carefully insulated common law of labor relations. Garmon, 359 U. S., at 240 (internal quotation marks omitted) .
The parties here have not asked us to reconsider Garmon, nor is it necessary to do so to resolve this case. ”

“ The Board has fleshed out this process via rulemaking authority that Congress has delegated. §156. If a person believes that an employer or union has committed an unfair labor practice, the person may file a charge with a regional director, who acts on behalf of the General Counsel. ”

“ It follows that Garmon preemption does not prevent States from imposing liability on employees who intentionally destroy their employer’s property. See, e.g., Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132, 136 (1976) (“Policing ... destruction of property has been held most clearly a matter for the States”) ”

“ They are employees whose collective and peaceful decision to withhold their labor is protected by the NLRA even if economic injury results. *** Today, the majority fails, in multiple respects, to heed Congress’s intent with respect to the Board’s primary role in adjudicating labor disputes, despite ostensibly applying Garmon, the bedrock case on that issue. ”

“ These kinds of determinations cry out for evidentiary hearings, and in this highly fact-sensitive area of the law, which generally develops on a case-by-case basis, the scope of NLRA protection in a given set of circumstances is typically determined once the facts have been established—through discovery, debate, and sometimes the tedious work of making contentious credibility determinations. ”

“ Justice Harlan concurred in the result, warning that the majority’s rule would “reduc [e] to the vanishing point” States’ “power to redress wrongful acts in the labor field” and provide any “effective remedy under their own laws for ... ”