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Background

In August 2017, the Union, which represents Glacier’s truck drivers, was engaged in collective bargaining negotiations with Glacier. Unhappy with the company’s response to its bargaining demands, the Union devised and executed a scheme to “intentionally sabotage” Glacier’s business operations and destroy its property. On the morning of August 11, Glacier had numerous concrete deliveries scheduled, with drivers starting work between 2 AM and 7 AM. Knowing this, the Union “coordinated with truck drivers to purposely time [a] strike when concrete was being batched and delivered” with the specific purpose “to cause destruction of the concrete.” At 7 AM, once “Union representatives knew there was a substantial volume of batched concrete in Glaciers barrels, hoppers, and ready-mix trucks, they called for a work stoppage.” A Union agent made a throat-slashing gesture to signal a “sudden cessation of work.”

On the day the strike began, 43 drivers were scheduled to work. The drivers arrived at staggered start times running from 2 a.m. to 7 a.m. Local 174 called the strike at 7 a.m., when all of the scheduled drivers had arrived for work…When the strike began, some trucks were at Glacier’s yard waiting to be loaded, some were returning to the yard to be reflled and some were out with loads of concrete to be delivered. Sixteen of the striking drivers returned trucks containing undelivered concrete to Glacier’s yard. These drivers left their trucks running so that Glacier could dispose of the concrete as the Company saw fit.

It is not for us to decide whether the National Labor Relations Board would have, or should have, decided these questions in the same manner. When an activity is arguably subject to § 7 [which includes strikes] or § 8 [unfair labor practice] of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted…If the Board decides, subject to appropriate federal judicial review, that conduct is protected by § 7, or prohibited by § 8, then the matter is at an end, and the States are ousted of all jurisdiction. Or, the Board may decide that an activity is neither protected nor prohibited, and thereby raise the question whether such activity may be regulated by the States.

The ruling

The Board has long taken the position—which both the Union and Glacier accept—that the NLRA does not shield 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. Given this undisputed limitation on the right to strike, we proceed to consider whether the Union has demonstrated that the statute arguably protects the drivers’ conduct. Davis, 476 U. S., at 395. We conclude that it has not. The drivers engaged in a sudden cessation of work that put Glacier’s property in foreseeable and imminent danger…The Union failed to “take reasonable precautions to protect” against this foreseeable and imminent danger.

Glacier Northwest is still a significant loss for unions, in large part because it does not draw clear lines indicating when Garmon still applies and when it does not. Suppose, for example, that a single angry worker picks up a piece of their employer’s equipment and smashes it at the beginning of a work stoppage. Does this one worker’s wildcat action render the entire union vulnerable to litigation?
Similarly, imagine a company much like Glacier Northwest, except that this company is so busy that it always has at least one truck full of wet concrete being delivered to a client. At what point are this union’s workers allowed to strike? And, if they do strike, what are the precise precautions the union must take in order to protect the employer’s trucks?
Questions like these will need to be decided in future litigation — and the mere existence of this litigation will only undermine Garmon even more. Striking unions will now potentially have to litigate one case in the NLRB while simultaneously litigating a second case whose purpose is to determine whether their employer is allowed to sue them in state court.
That will make it much easier for well-moneyed employers to grind down unions with legal fees.

The parties here have not asked us to reconsider Garmon, nor is it necessary to do so to resolve this case. Nonetheless, in an appropriate case, we should carefully reexamine whether the law supports Garmon’s “unusual” preemption regime. In doing so, I would bear in mind that any proper pre-emption inquiry must focus on the NLRA’s text and ask whether federal law and state law “are in logical contradiction,” such that it is impossible to comply with both.

The dissent

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. See San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959). Under Garmon, and as relevant here, a court presented with a tort suit based on strike conduct generally must pause proceedings and permit the Board to determine in the first instance whether the union’s conduct is lawful if the conduct at issue is even “arguably” protected by the NLRA.
Today, the Court falters. As the majority acknowledges, the Board’s General Counsel has filed a complaint with the Board after a thorough factual investigation, and that complaint alleges that the NLRA protects the strike conduct at the center of this state-court tort suit. The logical implication of a General Counsel complaint under Garmon is that the union’s conduct is at least arguably protected by the NLRA. Consequently, where (as here) there is a General Counsel complaint pending before the Board, courts—including this Court—should suspend their examination. Garmon makes clear that we have no business delving into this particular labor dispute at this time.
But instead of modestly standing down, the majority eagerly inserts itself into this conflict, proceeding to opine on the propriety of the union’s strike activity based on the facts alleged in the employer’s state-court complaint. As part of this mistaken expedition, the majority tries its own hand at applying the Board’s decisions to a relatively novel scenario that poses difficult line-drawing questions—fact-sensitive issues that Congress plainly intended for the Board to address after an investigation.

To the extent that the majority’s conclusion rests on the alleged fact that “by reporting for duty and pretending as if they would deliver the concrete, the drivers prompted the creation of the perishable product” that “put Glacier’s trucks in harm’s way,” I see nothing aggravated or even untoward about that conduct. 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. To the contrary, it was entirely lawful for the drivers to start their workday per usual, and for the Union to time the strike to put “maximum pressure on the employer at minimum economic cost to the union.”
Nor was the onus of protecting Glacier’s economic interests if a strike was called in the middle of the day on the drivers—it was, instead, on Glacier, which could have taken any number of prophylactic, mitigating measures. What Glacier seeks to do here is to shift the duty of protecting an employer’s property from damage or loss incident to a strike onto the striking workers, beyond what the Board has already permitted via the reasonable-precautions principle. In my view, doing that places a significant burden on the employees’ exercise of their statutory right to strike, unjustifiably undermining Congress’s intent. Workers are not indentured servants, bound to continue laboring until anyplanned work stoppage would be as painless as possible for their master. They are employees whose collective and peaceful decision to withhold their labor is protected by the NLRA even if economic injury results.