By Steve Wishnia

The Supreme Court is about to consider whether employers can sue unions for perishable goods lost during a strike by claiming they’re intentional property damage.

On Jan. 10, the Court will hear oral arguments in Glacier Northwest v. International Brotherhood of Teamsters Local 174, in which a Seattle concrete company is seeking to overturn a Washington Supreme Court decision dismissing its suit against Local 174 for the costs of several truckloads it had to throw out after drivers walked out in 2017. The state court held that Glacier had to wait until the National Labor Relations Board [NLRB] ruled on whether the damage was “incidental” to strike conduct protected under the federal National Labor Relations Act.

“This could give a lot of indication on where the Court is going on labor laws,” says West Virginia University Law School professor Anne Lofaso, a former NLRB attorney. At worst, she fears, the Court’s far-right majority could narrow what is considered “protected conduct.”

THE BACKGROUND

The strike by about 85 drivers began at three Glacier Northwest facilities in the Seattle area on the morning of Aug. 11, 2017 — 11 days after Local 174’s contract had expired. Sixteen drivers on the morning shift returned to the yard with their trucks still loaded. Union agents, the company says, told the drivers to “leave the fuckers running” and walk out without emptying them. The company had to rush to have other workers empty the trucks before the concrete dried inside them, build forms to dump it into, and then pay to have it removed.

This, Glacier Northwest repeatedly insists in its brief, was “intentional destruction of property,” which was “deliberately planned and timed” to damage its business.

Local 174 responds that the drivers had taken “reasonable precautions” to avoid damage to the trucks, by leaving them running so the concrete wouldn’t dry inside them, and that the union had moved the strike up one day so it wouldn’t occur on the day of a “mat pour,” the pouring of a large concrete slab for the foundation of a commercial building. Therefore, its brief argues, the loss of concrete was “incidental damage” that is common in strikes. A few weeks later, after the company sent disciplinary letters to several drivers, the union filed an unfair-labor-practice charge with the NLRB.

Glacier Northwest sued Local 174 for damages, and after partially contradictory lower-court rulings, the Washington Supreme Court in December 2021 unanimously dismissed the suit. It ruled that because the drivers leaving the trucks was “arguably protected” conduct under federal labor law, it was a matter for the NLRB, not state courts.

ARGUABLY PROTECTED

The case involves complex procedural issues. The Washington court relied on the Supreme Court’s 1959 decision in San Diego Building Trades Council v. Garmon, which set the precedent that if strikers’ conduct is “arguably” protected, the NLRB’s jurisdiction pre-empts that of state courts.

In the Glacier Northwest strike, “anyone who has any sense of labor law would say it’s ‘arguably’ protected,” says Lofaso. “Whether it is protected is a more complicated question.”

The general principles are that some economic losses are inevitable in a strike, but intentional property damage isn’t protected. Does the timing of the strike and drivers failing to empty the trucks qualify as “intentional property destruction”? Glacier Northwest’s brief, filed by former federal solicitor general Noel Francisco for the management side law-firm Jones Day, insists it does, repeating the phrase more than 60 times.

The unions — the Teamsters, along with the AFL-CIO, the Carpenters and SEIU, and UNITE HERE and the Sheet Metal, Air, Rail, and Transportation Workers in amicus briefs — disagree. The cases Jones Day is using to support its “intentional property destruction” claim, they say, involved clearly egregious conduct: sabotage of a crane, iron-foundry workers walking out just as a cupola full of molten metal was about to be poured, and drivers parking their trucks off the premises so the concrete inside dried. Meanwhile, the unions note, the NLRB has ruled several times over the past 65 years that strikers were not liable for damages when cheese, chicken, and milk spoiled and newspapers went undelivered.

The Carpenters estimate that the value of the concrete Glacier Northwest lost in the strike was less than $12,000, a small sum for one of the largest building-supply companies on the West Coast.

“The union activity for which Glacier seeks recovery in state court was a peaceful strike in support of collective bargaining demands,” the AFL-CIO states. “Such activity is at the heart of the concerted activity protected by the National Labor Relations Act.”

AN OPENING FOR THE BOSSES

Glacier Northwest, however, is also raising procedural issues based on the Court’s 1978 decision in Sears, Roebuck v. San Diego Carpenters. That held that a party can sue in state court if it lacks a “reasonable opportunity” to raise its claims before the NLRB.

Here, says Lofaso, the NLRB’s slow pace gives the company an opening. Local 174 filed its unfair-labor-practice complaint in September 2017, but the NLRB did not issue a formal complaint, analogous to an indictment, until January 2022, after the Washington Supreme Court decision. A hearing on the complaint is scheduled for Jan. 24.

In her experience litigating, Lofaso adds, the Supreme Court hates administrative delay.

She sees three possible ways the Court might rule. One would be to uphold the Washington court’s decision and let the NLRB decide whether the drivers were legally protected. Given the Court’s current makeup, she says, that is unlikely.

Another would hold that the NLRB took too long, but give some guidelines about what is an unreasonable delay. This scenario would mostly preserve the Garmon precedent of pre-emption, but would clarify what Justice Harry Blackmun in Sears called a “jurisdictional no man’s land.”

The outcome Lofaso speculates is most likely is the Court ruling that the drivers’ conduct was “almost certainly not protected,” and since the NLRB took too long, Glacier Northwest can sue for damages in state court.

SCARY SUPREME COURT

She says it’s worrisome that the Court agreed to hear the case, given the long-established precedent. There are legitimate procedural issues, but on the question of whether the strikers intentionally damaged property, “the Supreme Court can’t give a reasonable answer. They haven’t done a factual inquiry.”

Justices Samuel Alito and Clarence Thomas might want to use this case to narrow what is considered “protected activity,” Lofaso speculates. That would follow the pattern of the 2018 Janus v. AFSCME decision, which was preceded by another case where Alito disputed the 1977 precedent that public-sector unions may charge nonmembers fees for the costs of representing them.

Glacier Northwest argued in its petition that if the Washington court’s decision is allowed to stand, “it will not only put private property at the mercy of deliberate sabotage, but will also cast the NLRA into serious constitutional doubt by inviting the destruction of employers’ property rights while leaving them with no means of just compensation.”

This worries the unions. The Supreme Court has never heard a case where “a party argued it could proceed in state court when there was a pending NLRB charge,” the Teamsters note.

Would this case open the door to expanding employers’ ability to sue unions for alleged property damage, undermining workers’ right to strike? Risks to property from strikes “are omnipresent in every industry,” UNITE HERE and SMART argue. For example, UNITE HERE represents about 100,000 workers in the hotel-casino business, where “many perishables are in stock to serve the food and beverage needs of customers. When could hotel-casino employees strike without the risk that some product will be spoiled?”

“What’s at stake here is ‘what’s protected activity?’” Lofaso says. “That’s what’s scary about this case.”

Meanwhile, labor disputes continue in the Seattle-area concrete industry. In December 2021, Local 174 went on strike against six companies, including Glacier Northwest parent company CalPortland, demanding better health-care and retirement benefits and pay comparable to what other building-trades workers get. The companies tried to win a court order suppressing picketing, and the union won one prohibiting strikebreaker drivers from ramming their trucks through picket lines. They returned to work in April 2022 and ratified a contract with four of the companies in September.