Union Misconduct During A Strike May Result In State Court Liability

Peter Saucier
Peter Saucier

Decades ago, the Supreme Court interpreted the National Labor Relations Act to afford unions and strikers special immunity from state court liability for damages resulting from a strike. Named after a 1959 Supreme Court decision, that so-called Garmon exemption doctrine, in the words of the Supreme Court, “tells us not just what law applies (federal law, not state law) but who applies it (the National Labor Relations Board, not the state courts or federal district courts).”  That doctrine was reined in somewhat today by the Supreme Court.  Glacier Northwest, Inc. v. Teamsters, 598 U.S. ____ (June 1, 2023).  

The facts are important.  Industrial concrete, once prepared, must be poured and set promptly.  Glacier Concrete, a mid-sized company in Washington state, sends mixer trucks filled with concrete to jobsites every day.  In 2017, some 13 mixer trucks filled with concrete were on the road when the Teamsters Union called a mid-day strike among the drivers of Glacier Concrete.  Many of the mixer truck drivers returned their trucks to the company yard, filled with wet concrete, and walked away without emptying and cleaning their load.  Some concrete “froze” in the mixer trucks and much had to be discarded.  Glacier Concrete lost thousands of dollars in wasted concrete and spent many thousands of dollars to remove the frozen concrete from the mixer trucks, which trucks may have been permanently injured.  The cost was immense. 

Glacier Concrete sued the Teamsters in state court for tort damages.  After the case worked its way through the lower state courts, the Washington Supreme Court determined that the Teamsters applied economic pressure which exempts them from state law liability by federal law.  No remedy is available under state law because the Garmon exemption doctrine pre-empts tort remedy for ordinary economic damage from a strike. The United States Supreme Court heard argument earlier this year about the extent and interpretation of the exemption.

Now, although stated in three separate opinions, together eight justices of the Supreme Court held that the Garmon exemption doctrine is not as plenary in its protections from state court action as the Teamsters, the Washington state Supreme Court, and even the National Labor Relations Board considered it to be.  Writing the majority and lead opinion, Justice Barrett explained that while the NLRA protects the right to strike, “that right is not absolute.”  Importantly, the Supreme Court held that the party claiming the Garmon pre-emption from state liability bears the burden of proof in state court that it is entitled to be exempt from liability.

Past cases established that a striking union must take precautions to protect the employer’s plant, equipment, or products from serious damage.  Once the union does so, state court actions for damages from a strike are pre-empted by the NLRA. But, who decides whether the union’s actions are reasonable, even if they result in damage to the employer, and therefore exempt from state liability?  This Glacier opinion posits that the striking union must advance enough evidence to establish a “reasonable” position that it acted to protect property and that the state court should conduct that review.  That is noteworthy because the NLRB found earlier in the matter that that the NLRA protected the strike misconduct by the Teamsters at Glacier Concrete.  Yet, the Supreme Court is returning the dispute to Washington state courts for their own consideration with the burden to establish the exemption on the Teamsters.

The Teamsters tried to wriggle out of liability before the Supreme court by claiming that they had met any possible burden on them to show that they protected the employer’s property.  For example, they explained, the drivers returned the trucks to the Glacier Concrete yard when the strike was called, not leaving them abandoned on the street or such.  Justice Barrett was not impressed: “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.”

This decision may not be a radical departure from prior law but it represents a sea change.  It crystalizes that state courts enjoy the authority to determine within their own system whether an assertion of a Garmon exemption is warranted, and that the Union has the burden to satisfy the standard.  More state actions for damages against striking unions are sure to follow.

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