The allegedly deliberate destruction of company property by a union as a pressure tactic in a labor dispute isn’t protected by federal labor law, a concrete company told the Supreme Court on Jan. 10.
Labor activists say that endangering and destroying company property during a labor dispute is fair game that has long been protected by the law, although companies such as the petitioner in this case, Glacier Northwest, a Seattle-based ready-mix concrete company, are pushing back.
The justices spent much of the oral argument discussing the difference between economic harm inflicted during strikes, which the law generally doesn’t hold strikers responsible for, versus intentionally destroying property, which is forbidden.
Chief Justice John Roberts said: “There certainly is a distinction between economic harm to the employer, which is at the heart of many strikes anyway, and intentional destruction of property. The difference between the milk spoiling and killing the cow.”
The union’s attorney, Darin Dalmat, agreed with the example.
“We absolutely agree that you can’t burn down the factory,” Dalmat told Justice Ketanji Brown Jackson.
The case is Glacier Northwest Inc. v. International Brotherhood of Teamsters Local Union No. 174, court file 21-1449. Glacier Northwest does business as CalPortland.
Company attorney Noel Francisco outlined his side’s case during oral arguments.
“The Court and the [National Labor Relations] Board have long recognized that the intentional destruction of an employer’s property in the course of a labor dispute is not protected concerted activity,” he said.
“That’s why steelworkers can’t walk out in the middle of a molten iron pour. It’s why federal security guards can’t leave their posts in the middle of a terrorist threat. It’s why a ferry boat crew can’t drive their boat out into the middle of the river and abandon ship. And it’s why, in this very case, the government agrees that the conduct alleged in this complaint isn’t even arguably protected.”
The case dates to August 2017, when cement mixer truck drivers decided to strike against Glacier. They loaded the vehicles with cement and left them on the company’s premises. According to the union, drivers left the trucks running to prevent the cement from quickly hardening, becoming useless, and possibly damaging the trucks’ drums.
On the first morning of the planned strike, “Union representatives knew there was a substantial volume of batched concrete in Glacier’s barrels, hoppers, and ready-mix trucks, [and] they called for a work stoppage.” A union official made a throat-slashing gesture to signal a “sudden cessation of work.”
The company said the labor tactic caused “complete chaos” as it scrambled “to dispose of the concrete in a timely manner to avoid costly damage to the mixer trucks and in a manner so as not to create an environmental disaster.”
The strike went on for a week before a new collective bargaining agreement was reached.
Citing Washington state law, the company sued the union for intentional destruction of property. The union countered that state-law claims were by implication preempted under the Supreme Court’s decision in San Diego Building Trades Council v. Garmon (1959).
The company argued that although the federal National Labor Relations Act (NLRA) protects “peaceful methods of ... economic pressure,” it doesn’t allow a union to “enforce” its labor demands by way of “injury to property.”
The state-level trial court sided with the union, finding that the Garmon precedent shielded the Teamsters from state tort liability for intentional destruction of property.
The Washington Court of Appeals reversed, finding that “the intentional destruction of property during a lawful work stoppage is not protected activity under” the NLRA.
But the Washington Supreme Court overturned that ruling, reinstating the trial court’s dismissal of the company’s lawsuit. That court found that the union’s intentional destruction of company property was a “legitimate bargaining tactic” that trumps the state law’s interest in protecting property.
Along the way, the National Labor Relations Board (NLRB) formally accused the company of unfair labor practices, asserting that the workers’ actions were “arguably protected.”
Speaking for the Biden administration, Justice Department attorney Vivek Suri said Glacier’s lawsuit should move forward in state court because the striking workers didn’t take appropriate precautions to prevent damage to company property.
Justice Elena Kagan said the facts of the case, which she described as “really murky” and “complicated,” should be decided by the NLRB.
Justice Sonia Sotomayor asked Suri for guidance.
“So tell me how to write this decision,” she said.
To laughter in the courtroom, Suri shot back: “I'd suggest copying our brief, Your Honor.”
“The National Labor Relations Act protects the right to strike, but workers have a corresponding responsibility to take reasonable precautions to prevent foreseeable, imminent harm to the employer’s property,” Suri said.
But according to the company, “such precautions were not taken,” which means “the conduct was not even arguably protected, and the Washington Supreme Court’s decision is reversed,” he said.
The Supreme Court shouldn’t address the NLRB complaint “because there are significant complications that the lower courts have not addressed,” he said.
Dalmat told the justices the union acted reasonably.
The walkout “was at least arguably protected” and the “record shows the union instructed the drivers to return their trucks to Glacier’s facility, which all the drivers did, thereby putting Glacier in a position to use its ordinary tools for handling leftover concrete, such as reclaimers, ecology block forms, and retardants. The union also told drivers to return their trucks with the drums running,” he said.
Because the concrete “does not even begin to harden until the drums stop turning ... no harm came to Glacier’s trucks or facility,” Dalmat said.
The evidence NLRB possesses allows the board “to rule in our favor.”
Francisco disagreed with Dalmat.
“This is not a case about the mere stoppage of work,” the company lawyer said.
“Here, the union had the workers show up, accept possession of the concrete, begin deliveries of the concrete, abandon those deliveries when it was too late to save the concrete, and then countermand supervisor instructions to complete the deliveries that had already been started, which at that point in time was the only way to save the concrete.”
“It’s really no different than the riverboat crew that drives out into the middle of the river and then abandons ship. That is not merely a stoppage of work,” Francisco said.
The Supreme Court is expected to issue a decision in the case by June.
