# Glacier Northwest v. Teamsters/Opinion of the Court

Notice: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 21–1449
GLACIER NORTHWEST, INC., DBA CALPORTLAND, PETITIONER v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL UNION NO. 174 ON WRIT OF CERTIORARI TO THE SUPREME COURT OF WASHINGTON [June 1, 2023]
Justice Barrett delivered the opinion of the Court.
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. But the company did not get very far: The state court dismissed Glacier’s tort claims on the ground that they were preempted by the National Labor Relations Act. We reverse.
I A
Enacted in 1935, the National Labor Relations Act (NLRA) “encourag[es] the practice and procedure of collective bargaining” between labor and management to resolve “industrial disputes arising out of differences as to wages, ​hours, or other working conditions.” 49 Stat. 449, 29 U. S. C. §151. Section 7 of the NLRA protects employees’ rights “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” §157. Section 8, in turn, prohibits employers and unions from engaging in certain “unfair labor practice[s],” such as interfering with employees’ exercise of their §7 rights. §§158(a), (b).
To enforce the NLRA, Congress created the National Labor Relations Board. The Board is authorized “to prevent any person from engaging in any unfair labor practice” that “affect[s] commerce.” §160(a). Its authority kicks in when a person files a charge with the agency alleging that an unfair labor practice is afoot. 29 CFR §101.2 (2021). Agency staff investigate the charge, and if it “appears to have merit,” the agency issues a complaint against the offending party. §§101.4, 101.8. After taking evidence and conducting a hearing, the Board makes the final call. 29 U. S. C. §§160(b), (c); see also 29 CFR §§101.10–101.12. If it determines that a party has engaged in an unfair labor practice, the Board orders it to “cease and desist” from that practice. 29 U. S. C. §160(c). The Board may seek enforcement of its order in a federal court of appeals. §160(e). And a party aggrieved by the order may ask the court to set it aside. §160(f).
B
Sometimes a party to a labor dispute goes directly to a court—raising the specter that state law will say one thing about the conduct underlying the dispute while the NLRA says another. It is a bedrock rule, of course, that federal law preempts state law when the two conflict. U. S. Const., Art. VI, cl. 2. Preemption under the NLRA is unusual, though, because our precedent maintains that the NLRA ​preempts state law even when the two only arguably conflict. San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959) (“When an activity is arguably subject to §7 or §8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board”). This doctrine—named Garmon preemption after the case that originated it—thus goes beyond the usual preemption rule. Under Garmon, States cannot regulate conduct “that the NLRA protects, prohibits, or arguably protects or prohibits.” Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282, 286 (1986).
Though broad, this standard has teeth. Longshoremen v. Davis, 476 U. S. 380, 394 (1986) (“The precondition for preemption, that the conduct be ‘arguably’ protected or prohibited, is not without substance”). It requires more than “a conclusory assertion” that the NLRA arguably protects or prohibits conduct. Ibid. “[A] party asserting pre-emption must advance 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.” Id., at 395. The party must then “put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation.” Ibid.
If the court determines that the party has met its burden to show that “there is an arguable case for pre-emption,” it generally must grant the party’s preemption defense and await the Board’s resolution of the legal status of the relevant conduct. Id., at 397. After that, “only if the Board ​decides that the conduct is not protected or prohibited [by the NLRA] may the court entertain the litigation.” Ibid. “[W]hen properly invoked,” Garmon thus “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).” Trollinger v. Tyson Foods, Inc., 370 F. 3d 602, 608 (CA6 2004).
C
We relay the facts as alleged in the complaint. Glacier Northwest sells ready-mix concrete to customers in Washington State. Each batch must be mixed to the customer’s specifications. 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. Worse still, the hardening begins right away if the drum stops revolving.
The International Brotherhood of Teamsters Local Union No. 174 (Union) serves as the exclusive bargaining representative for Glacier’s truck drivers. After the collective-bargaining agreement between Glacier and the Union expired in the summer of 2017, the parties negotiated in an attempt to reach a new deal. Things did not go smoothly.
​Tensions came to a head on the morning of August 11. According to the allegations in Glacier’s complaint, a Union agent signaled for a work stoppage when the Union knew that Glacier was in the midst of mixing substantial amounts of concrete, loading batches into ready-mix trucks, and making deliveries. Although Glacier quickly instructed drivers to finish deliveries in progress, the Union directed them to ignore Glacier’s orders. At least 16 drivers who had already set out for deliveries returned with fully loaded trucks. Seven parked their trucks, notified a Glacier representative, and either asked for instructions or took actions to protect their trucks. But at least nine drivers abandoned their trucks without a word to anyone.
Glacier faced an emergency. The company could not leave the mixed concrete in the trucks because the concrete’s inevitable hardening would cause significant damage to the vehicles. At the same time, the company could not dump the concrete out of the trucks at random because concrete contains environmentally sensitive chemicals. To top it all off, Glacier had limited time to solve this conundrum.
A mad scramble ensued. Glacier needed to determine which trucks had concrete in them, how close the concrete in each truck was to hardening, and where to dump that concrete in an environmentally safe manner. Over the course of five hours, nonstriking employees built special bunkers and managed to offload the concrete. When all was said and done, Glacier’s emergency maneuvers prevented damage to its trucks. But the concrete that it had already mixed that day hardened in the bunkers and became useless.
Glacier sued the Union for damages in Washington state court. Relying on the allegations detailed above, Glacier claimed that the Union intentionally destroyed the company’s concrete and that this conduct amounted to common-law conversion and trespass to chattels.
​The Union moved to dismiss Glacier’s tort claims on the ground that the NLRA preempted them. In the Union’s view, the NLRA at least arguably protected the drivers’ conduct, so the State was powerless to hold the Union accountable for any of the strike’s consequences.
The trial court agreed with the Union. After the appellate court reversed, the Washington Supreme Court reinstated the trial court’s decision. In its view, “the NLRA preempts Glacier’s tort claims related to the loss of its concrete product because that loss was incidental to a strike arguably protected by federal law.” 198 Wash. 2d 768, 774, 500 P. 3d 119, 123 (2021).
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., at 395. The Union passes the first test but fails the second.
All agree that the NLRA protects the right to strike but that this right is not absolute. Brief for Petitioner 18; Brief for Respondent 21, 46, n. 14. 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. Bethany Medical Center, 328 N. L. R. B. 1094 (1999) (“concerted activity” is “indefensible ​where employees fail to take reasonable precautions to protect the employer’s plant, equipment, or products from foreseeable imminent danger due to sudden cessation of work”); see also Brief for Petitioner 14, 30–31; Brief for Respondent 28–29; Reply Brief 6–7; Tr. of Oral Arg. 68, 86. 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 knew that concrete is highly perishable and that it can last for only a limited time in a delivery truck’s rotating drum. It also knew that concrete left to harden in a truck’s drum causes significant damage to the truck. The Union nevertheless coordinated with truck drivers to initiate the strike when Glacier was in the midst of batching large quantities of concrete and delivering it to customers. Predictably, the company’s concrete was destroyed as a result. And though Glacier’s swift action saved its trucks in the end, the risk of harm to its equipment was both foreseeable and serious. See NLRB v. Special Touch Home Care Services, Inc., 708 F. 3d 447, 460 (CA2 2013) (“The appropriate inquiry is focused on the risk of harm, not its realization”).
The Union failed to “take reasonable precautions to protect” against this foreseeable and imminent danger. Bethany Medical Center, 328 N. L. R. B., at 1094. It could have ​initiated the strike before Glacier’s trucks were full of wet concrete—say, by instructing drivers to refuse to load their trucks in the first place. 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. But the Union’s failure to take even minimal precautions illustrates its failure to fulfill its duty.
Indeed, far from taking reasonable precautions to mitigate foreseeable danger to Glacier’s property, the Union executed the strike in a manner designed to compromise the safety of Glacier’s trucks and destroy its concrete. Such conduct is not “arguably protected” by the NLRA; on the contrary, it goes well beyond the NLRA’s protections. See NLRB v. Marshall Car Wheel & Foundry Co., 218 F. 2d 409, 411, 413 (CA5 1955) (strike unprotected when employees abandoned their posts without warning “when molten iron in the plant cupola was ready to be poured off,” even though “a lack of sufficient help to carry out the critical pouring operation might well have resulted in substantial property damage”).
Thus, accepting the complaint’s allegations as true, the Union did not take reasonable precautions to protect Glacier’s property from imminent danger resulting from the drivers’ sudden cessation of work. The state court thus erred in dismissing Glacier’s tort claims as preempted on the pleadings.
III
The Union resists this conclusion. First, it emphasizes ​that the NLRA’s protection of the right to strike should “ ‘be given a generous interpretation.’ ” Brief for Respondent 21 (quoting NLRB v. Erie Resistor Corp., 373 U. S. 221, 234–235 (1963)). A strike, it points out, consists of a “concerted stoppage of work.” §142(2). So, the argument goes, by engaging in a concerted stoppage of work to support their economic demands, the drivers engaged in conduct arguably protected by §7 of the NLRA.
This argument oversimplifies the NLRA. As we explained, the right to strike is limited by the requirement that workers “take reasonable precautions to protect the employer’s plant, equipment, or products from foreseeable imminent danger due to sudden cessation of work.” Bethany Medical Center, 328 N. L. R. B., at 1094. So the mere fact that the drivers engaged in a concerted stoppage of work to support their economic demands does not end the analysis. We must also ask whether the strike exceeded the limits of the statute.
Second, the Union argues that “workers do not forfeit the Act’s protections simply by commencing a work stoppage at a time when the loss of perishable products is foreseeable.” Brief for Respondent 22. It points out that the Board has found strikers’ conduct protected even when their decision not to work created a risk that perishable goods would spoil. See, e.g., Lumbee Farms Coop., 285 N. L. R. B. 497 (1987) (raw poultry processing workers), enf’d, 850 F. 2d 689 (CA4 1988); Central Oklahoma Milk Producers Assoc., 125 N. L. R. B. 419 (1959) (milk-truck drivers), enf’d, 285 F. 2d 495 (CA10 1960); Leprino Cheese Co., 170 N. L. R. B. 601 (1968) (cheese factory employees), enf’d, 424 F. 2d 184 (CA10 1970). If the mere risk of spoilage is enough to render a strike illegal, the Union insists, then workers who deal with perishable goods will have no meaningful right to strike.
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. This case therefore involves much more than “a work stoppage at a time when the loss of perishable products is foreseeable.” Brief for Respondent 22.
Third, the Union maintains that the timing of the strike and Glacier’s lack of notice cannot render the drivers’ conduct unprotected. Id., at 26–28. It argues that workers are not required to time their strikes to minimize economic harm to their employer, see Lumbee Farms, 285 N. L. R. B., at 506, and that the NLRA does not impose a legal requirement that workers give specific notice of a strike’s timing, see Columbia Portland Cement Co. v. NLRB, 915 F. 2d 253, 257 (CA6 1990).
We agree that the Union’s decision to initiate the strike during the workday and failure to give Glacier specific notice do not themselves render its conduct unprotected. Still, they are relevant considerations in evaluating whether strikers took reasonable precautions, whether harm to property was imminent, and whether that danger was foreseeable. See International Protective Services, Inc., 339 N. L. R. B. 701, 702–703 (2003) (attempt “ ‘to capitalize on the element of surprise’ ” stemming from a lack of notice weighed in favor of concluding that a union failed to take reasonable precautions). In this instance, the Union’s choice to call a strike after its drivers had loaded a large amount of wet concrete into Glacier’s delivery trucks strongly suggests that it failed to take reasonable precautions to avoid foreseeable, aggravated, and imminent harm to Glacier’s property.
​Finally, the Union points out that the drivers returned the trucks to Glacier’s facility. And it maintains that all of the drivers left the drums of their trucks rotating, which delayed the concrete’s hardening process. In the Union’s view, this establishes that the drivers took reasonable precautions to protect the trucks. Brief for Respondent 28–30.
We see it differently. 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. See id., at 9, 30; Brief for Petitioner 8; App. 34. This snippet does not show that all of the drivers left their trucks running, and even if it did, that would not necessarily mean that the delivery trucks’ drums continued rotating. In any event, Glacier alleged that if concrete remains in a ready-mix truck for too long, it will harden and cause significant damage to the truck. The rotating drum forestalls that hardening for a time, but not indefinitely. And the Union concedes that the NLRA does not arguably protect its actions if they posed a material risk of harm to the trucks. Tr. of Oral Arg. 78.
​*** Glacier alleges that the drivers’ conduct created an emergency in which it had to devise a way to offload concrete “in a timely manner to avoid costly damage to [its] mixer trucks.” App. 72. The Union’s actions not only resulted in the destruction of all the concrete Glacier had prepared that day; they also posed a risk of foreseeable, aggravated, and imminent harm to Glacier’s trucks. Because the Union took affirmative steps to endanger Glacier’s property rather than reasonable precautions to mitigate that risk, the NLRA does not arguably protect its conduct. We reverse the judgment of the Washington Supreme Court and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
* ↑ We have recognized exceptions to this rule. One allows a court to resolve a claim if the party raising it lacks a “reasonable opportunity” to secure a Board decision on the legal status of the conduct at issue. Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180, 201 (1978); see also Davis, 476 U. S., at 393, n. 10. Another applies if the conduct in question is “a merely peripheral concern” of the NLRA. San Diego Building Trades Council v. Garmon, 359 U. S. 236, 243 (1959). 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.” Id., at 244. Because we conclude that the NLRA does not arguably protect the Union’s conduct, we need not address these exceptions.
* ↑ The Union moved to dismiss Glacier’s claims for failure to state a claim and for lack of subject matter jurisdiction. Like the Washington Supreme Court, we treat both motions together and accept the allegations in the complaint as true at the motion-to-dismiss stage. 198 Wash. 2d 768, 782–783, 500 P. 3d 119, 127 (2021); see also Kinney v. Cook, 159 Wash. 2d 837, 842, 154 P. 3d 206, 209 (2007). Pursuant to Washington law, we also may consider additional factual allegations made by Glacier that support its complaint. See Bravo v. Dolsen Companies, 125 Wash. 2d 745, 750, 888 P. 2d 147, 150 (1995).
* ↑ After the Washington Supreme Court affirmed the dismissal of Glacier’s tort claims, the Board’s general counsel issued a complaint alleging that Glacier engaged in unfair labor practices in relation to its labor dispute with the drivers, including by disciplining some of those involved in the strike. The lower courts have not addressed the significance, if any, of the Board’s complaint with respect to Garmon preemption. We will not do so in the first instance. Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view”). The Board’s general counsel agrees that this issue is not properly before us. See Brief for United States as Amicus Curiae 28.