1 (Slip Opinion) OCTOBER TERM, 2022

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co. , 200 U. S. 321, 337. 

## SUPREME COURT OF THE UNITED STATES

Syllabus

GLACIER NORTHWEST, INC., DBA CALPORTLAND v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL UNION NO. 174

CERTIORARI TO THE SUPREME COURT OF WASHINGTON

No. 21–1449. Argued January 10, 2023—Decided June 1, 2023

Glacier Northwest delivers concrete to customers in Washington State

using ready-mix trucks with rotating drums that prevent the concrete from hardening during transit. Concrete is highly perishable, and even concrete in a rotating drum will eventually harden, causing sig

nificant damage to the vehicle. Glacier’s truck drivers are members of the International Brotherhood of Teamsters Local Union No. 174. Af

ter a collective-bargaining agreemen t between Glacier and the Union expired, the Union called for a work stoppage on a morning it knew the company was in the midst of mixing substantial amounts of concrete, loading batches into ready-mix truc ks, and making deliveries. The Union directed drivers to ignore Glac ier’s instructions to finish deliv

eries in progress. At least 16 dr ivers who had already set out for de

liveries returned with fu lly loaded trucks. By initiating emergency maneuvers to offload the concrete, Glacier prevented significant dam

age to its trucks, but all the conc rete mixed that day hardened and became useless. Glacier sued the Union for damage s in state court, claiming that the Union intentionally destroyed the co mpany’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 National Labor Relations Act (NLRA) preempted them. While a federal law generally preempts stat e law when the tw o conflict, the NLRA preempts state law even when the two only arguably conflict. San Diego Building Trades Council v. Garmon , 359 U. S. 236, 245. In the Union’s view, the NLRA—which prot ects employees’ rights “to selforganization, to form, join, or assist labor organizations, . . . and to en

-2 GLACIER NORTHWEST, INC. v. TEAMSTERS

Syllabus

gage in other concerted activities for the purpose of collective bargain

ing or other mutual aid or protection,” 29 U. S. C. §157—at least argu

ably protected the drivers’ conduct, so the State lacked the power to hold the Union accountable for any of the strike’s consequences. The Washington Supreme Court agreed with the Union, reasoning that “the NLRA preempts Glacier’s tort claims related to the loss of its con

crete product because that loss was incidental to a strike arguably pro

tected by federal law.”
Held : The NLRA did not preempt Glacier’s tort claims alleging that the

Union intentionally destroyed the co mpany’s property during a labor dispute. Pp. 6–12.

(a) The parties agree that the NL RA protects the right to strike but that this right is not absolute. The National Labor Relations Board has long taken the position—which the parties 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 Medi

cal Center , 328 N. L. R. B. 1094. Given this undisputed limitation on the right to strike, the Court conclu des that the Union has not met its burden as the party asserting pr eemption to demonstrate that the NLRA arguably protects th e drivers’ conduct. Longshoremen v. Davis

, 476 U. S. 380, 395. Accepting the complaint’s allegations as true, the Union did not take reasonable precau tions to protect Gl acier’s property from imminent danger resulting from the drivers’ sudden cessation of work. The Union knew that concrete is highly perishable, that it can last for only a limited time in a delivery truck’s rotating drum, and that concrete left to harden in a truck’s drum causes significant dam

age to the truck. The Union nevertheless coordinated with truck driv

ers to initiate the strike when Gl acier was in the midst of batching large quantities of concrete and deliv ering it to custom ers. The result

ing risk of harm to Glacier’s equipment and destruction of its concrete were both foreseeable and serious. The Union thus failed to “take rea

sonable precautions to protect” against this foreseeable and imminent danger. Bethany Medical Center , 328 N. L. R. B., at 1094. Indeed, far from taking reasonable precautions, the Union ex ecuted the strike in a manner designed to achieve those re sults. Because such conduct is not arguably protected by the NLRA, the state court erred in dismiss

ing Glacier’s tort claims as preempted. Pp. 6–8. (b) The Union’s efforts to resist the conclusion that the NLRA does not arguably protect its conduct are unavailing. First, the Union em

phasizes that the NLRA’s protection of the right to strike should be interpreted generously. But the protected right to strike is not abso

lute, thus the Court must analyze wh ether the strike exceeded the lim

its of conduct protected by the statute.3 Cite as: 598 U. S. ____ (2023)

Syllabus

Second, the Union argues that workers do not forfeit the NLRA’s protections simply by commencing a work stoppage when the loss of perishable products is foreseeable, but this case involves much more than that. Given the lifespan of wet concrete, Glacier could not batch it until a truck was ready to take it . By reporting for duty and pre

tending as if they would deliver th e concrete, the drivers prompted the creation of the perishable product. Then, they waited to walk off the job until the concrete was mixed and pour ed in the trucks. In so doing, they not only destroyed the concrete but also put Glacier’s trucks in harm’s way.

Third, the Court ackn owledges that the Union’ s decision to initiate the strike during the workday and failure to give Glacier specific notice do not themselves render the Union’ s conduct unprotected. Still, these actions 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. Here, the Union’s choice to call a strike after its drivers had loaded a large amount of wet con

crete into Glacier’s delivery trucks strongly suggests that it failed to take reasonable precautions to avoid foreseeable, aggravated, and im

minent harm to Glacier’s property.

Finally, while the Union maintains that the drivers took some steps to protect the trucks, the Union concedes that the NLRA does not ar

guably protect its actions if those actions posed a material risk of harm to the trucks. Given that Glacier alleges that the Union took affirma

tive steps to endanger Glacier’s pr operty rather than reasonable pre

cautions to mitigate that risk, the NLRA does not arguably protect the Union’s conduct. Pp. 8–12. 198 Wash. 2d 768, 500 P. 3d 119, reversed and remanded.

B ARRETT , J., delivered the opinion of the Court, in which R OBERTS , C. J., and S OTOMAYOR , K AGAN , and K AVANAUGH , JJ., joined. T HOMAS , J., filed an opinion concurring in the judgment, in which G ORSUCH , J., joined. A LITO , J., filed an opinion concurri ng in the judgment, in which T HOMAS and G ORSUCH , JJ., joined. J ACKSON , J., filed a dissenting opin

ion._________________

_________________ 1 Cite as: 598 U. S. ____ (2023)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov , of any typographical or other formal errors. 

## 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]

J USTICE B ARRETT 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 driv

ers 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 ma

neuvers, the concrete that it had already produced that day went to waste. Glacier sued the union in state court for de

stroying 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 collec

tive bargaining” between labor and management to resolve “industrial disputes arising out of differences as to wages,2 GLACIER NORTHWEST, INC. v. TEAMSTERS

Opinion of the Court 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 or

ganizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac

tivities for the purpose of collective bargaining or other mu

tual aid or protection.” §157. Section 8, in turn, prohibits employers and unions from engaging in certain “unfair la

bor practice[s],” such as inte rfering with employees’ exer

cise of their §7 rights. §§158(a), (b). To enforce the NLRA, Congress created the National La

bor 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 un

fair 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 conduct

ing 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 deter

mines 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 labo r 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 NLRA3 Cite as: 598 U. S. ____ (2023)

Opinion of the Court
preempts state law even when the two only arguably con

flict. 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 Na

tional Labor Relations Board”). This doctrine—named Gar

mon 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 In

dustry 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 pre

emption, that the conduct be ‘arguably’ protected or prohib

ited, is not without substance”). It requires more than “a conclusory assertion” that th e 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 ‘au

thoritatively 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 up

hold 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 rele

vant conduct. Id. , at 397. 1 After that, “only if the Board

——————

1 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 situations4 GLACIER NORTHWEST, INC. v. TEAMSTERS

Opinion of the Court
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 ap

plies 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 Wash

ington State. Each batch must be mixed to the customer’s specifications. After Glacier combines the raw ingredients—cement, sand, a ggregate, 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 co ncrete 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 righ t away if the drum stops re

volving. The International Brotherhood of Teamsters Local Union No. 174 (Union) serves as the exclusive bargaining repre

sentative for Glacier’s truck drivers. After the collectivebargaining agreement between Glacier and the Union ex

pired in the summer of 2017, the parties negotiated in an attempt to reach a new deal. Things did not go smoothly.

—————— “where the regulated conduct touche[s] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congres

sional 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 Un ion’s conduct, we need not ad

dress these exceptions.5 Cite as: 598 U. S. ____ (2023)

Opinion of the Court 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 repre

sentative, 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 con

crete’s inevitable hardening would cause significant dam

age to the vehicles. At the same time, the company could not dump the concrete out of the trucks at random because concrete contains environmenta lly sensitive chemicals. To top it all off, Glacier had limited time to solve this conun

drum. 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 use

less. Glacier sued the Union for damages in Washington state court. Relying on the allegations detailed above, Glacier claimed that the Union intentionally destroyed the com

pany’s concrete and that this conduct amounted to commonlaw conversion and trespass to chattels.6 GLACIER NORTHWEST, INC. v. TEAMSTERS

Opinion of the Court

The Union moved to dismiss Gl acier’s tort claims on the ground that the NLRA preempted them. In the Union’s view, the NLRA at least arguably protected the drivers’ con

duct, so the State was powerless to hold the Union account

able for any of the strike’s consequences. The trial court agreed with the Union. After the appel

late court reversed, the Washington Supreme Court rein

stated the trial court’s decision. In its view, “the NLRA preempts Glacier’s tort claims related to the loss of its con

crete 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 in

tentionally destroyed its prope rty 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 Un ion and Glacier accept—that the NLRA does not shield stri kers who fail to take “reason

able precautions” to protect thei r 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 “indefensible7 Cite as: 598 U. S. ____ (2023)

Opinion of the Court where employees fail to take reasonable precautions to pro

tect the employer’s plant, equipm ent, or products from fore

seeable 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. 2 The drivers engaged in a sudden cessation of work that put Glacier’s property in fore seeable 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 rotat

ing 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 initi

ate 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 re

sult. And though Glacier’s swift action saved its trucks in the end, the risk of harm to its equipment was both foresee

able and serious. See NLRB v. Special Touch Home Care Services, Inc. , 708 F. 3d 447, 460 (CA2 2013) (“The appro

priate inquiry is focused on the risk of harm, not its reali

zation”). The Union failed to “take reasonable precautions to pro

tect” against this foreseeable and imminent danger. Beth

any Medical Center , 328 N. L. R. B., at 1094. It could have

——————

2 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 motion s together and accept the allega

tions 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).8 GLACIER NORTHWEST, INC. v. TEAMSTERS

Opinion of the Court

initiated the strike before Glac ier’s trucks were full of wet concrete—say, by instructing driv ers 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 un

load the concrete. Yet the Un ion did not take the simple step of alerting Glacier that these trucks had been re

turned. Nor, after the trucks were in the yard, did the Un

ion direct its drivers to follow Gl acier’s instructions to facil

itate a safe transfer of equipment. To be clear, the “reasonable precautions” test does not mandate any one ac

tion in particular. But the Union’s failure to take even min

imal precautions illustrates its failure to fulfill its duty. Indeed, far from taking reasonable precautions to miti

gate foreseeable danger to Gl acier’s property, the Union ex

ecuted 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 result ed in substantial property damage”). Thus, accepting the complaint’s allegations as true, the Union did not take reasonable precautions to protect Glac

ier’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 emphasizes9 Cite as: 598 U. S. ____ (2023)

Opinion of the Court 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 en

gaging in a concerted stoppage of work to support their eco

nomic demands, the drivers engaged in conduct arguably protected by §7 of the NLRA. This argument oversimplifies the NLRA. As we ex

plained, 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.” Beth

any 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 co mmencing 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 protecte d 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 ren

der a strike illegal, the Unio n 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 that10 GLACIER NORTHWEST, INC. v. TEAMSTERS

Opinion of the Court the employer’s perishable products would spoil. But given the lifespan of wet concrete, Gl acier 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 stop

page at a time when the loss of perishable products is fore

seeable.” Brief for Respondent 22. Third, the Union maintains that the timing of the strike and Glacier’s lack of notice cannot render the drivers’ con

duct unprotected. Id. , at 26–28. It argues that workers are not required to time their s trikes 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 require

ment 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 no

tice do not themselves render its conduct unprotected. Still, they are relevant considerat ions in evaluating whether strikers took reasonable precautions, whether harm to property was imminent, and whether that danger was fore

seeable. 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 in to Glacier’s delivery trucks strongly suggests that it failed to take reasonable precau

tions to avoid foreseeable, aggravated, and imminent harm to Glacier’s property.11 Cite as: 598 U. S. ____ (2023)

Opinion of the Court
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 pre

cautions 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 pro

tect them. And Glacier’s allega tions do not support the Un

ion’s assertion that all of the drivers left the drums rotating. The Union relies on a vague re mark by an unspecified Un

ion 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 neces

sarily mean that the delivery trucks’ drums continued ro

tating. In any event, Glacier alleged that if concrete re

mains 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. 3

——————

3 After the Washington Supreme Court affirmed the dismissal of Glac

ier’s tort claims, the Board’s general counsel issued a complaint alleging that Glacier engaged in unfair labor pr actices in relation to its labor dis

pute with the drivers, including by di sciplining 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 28.12 GLACIER NORTHWEST, INC. v. TEAMSTERS

Opinion of the Court

* * * Glacier alleges that the drivers’ conduct created an emer

gency in which it had to devise a way to offloa d 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 tru cks. 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 re

mand the case for further proceedings not inconsistent with this opinion. It is so ordered._________________

_________________ 1 Cite as: 598 U. S. ____ (2023)

T HOMAS , J., concurring in judgment 

## 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]

J USTICE T HOMAS , with whom J USTICE G ORSUCH joins, concurring in the judgment. I agree that petitioner’s state-court claims are not pre

empted by the National Labor Relations Act (NLRA). The majority reaches this conclusi on, however, by applying the Court’s precedent in San Diego Building Trades Council v. Garmon , 359 U. S. 236 (1959), which held that state courts are disabled from adjudicating state-law claims that con

cern conduct “arguably” protected under the NLRA. Id. , at 245–246. Because this Court has previously held that the type of conduct alleged here is not protected, I join J USTICE A LITO ’s opinion concurring in the judgment. I write sepa

rately to emphasize the oddity of Garmon ’s broad pre-emp

tion regime. This Court typically applies a high bar before concluding that federal law “strip[s] state co urts of jurisdiction to hear their own state claims.” Atlantic Richfield Co. v. Christian

, 590 U. S. ___, ___–___ (2020) (slip op., at 11–12). Likewise, the Court generally requires a “clear” purpose to displace state law before finding that a federal statute does so. Wy

eth v. Levine , 555 U. S. 555, 565 (2009) (internal quotation marks omitted). As the majority notes, however, Garmon “goes beyond the usual preemption rule.” Ante , at 3. In Garmon , the Court2 GLACIER NORTHWEST, INC. v. TEAMSTERS

T HOMAS , J., concurring in judgment determined that, “[w]hen an activity is arguably subject to §7 or §8 of the Act” (which, re spectively, concern employees’ right to engage in concerted activity and unfair labor prac

tices), “the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board [(NLRB or Board)].” 359 U. S., at 245. The Court went on to explain that this prophylactic rule of pre-emp

tion may apply even to state-court claims arising under state private law (rather than the NLRA or a comparable state regulatory scheme) and even to claims seeking reme

dies not available from the Board. Id. , at 246–248.* Nor, under the Court’s rule, is the State’s power to act restored if the NLRB “fail[s] to determine the status of the disputed conduct by declining to assert ju risdiction, or by refusal . . . to file a charge; or by adopting some other disposition which does not define the nature of the activity with unclouded legal significance.” Id. , at 245–246. Garmon acknowledged that th e NLRA’s pre-emption im

plications “ ‘are of a Delphic nature, ’ ” leaving the States’ re

sidual power in a “‘penumbral area [that] can be rendered progressively clear only by the course of litigation.’ ” Id. , at 240–241 (quoting Machinists v. Gonzales , 356 U. S. 617, 619 (1958); Weber v. Anheuser-Busch, Inc. , 348 U. S. 468, 480–481 (1955)). It thus emphasized that “Congress has entrusted administration of the labor policy for the Nation to a centralized administrative agency,” making it “essen

tial to the administration of the Act” that determinations about protected and prohibited conduct “be left in the first

——————

*Nonetheless, and motivated by “due regard for the presuppositions of our embracing federal system,” Garmon carved out two areas of pre

sumptive state control: (1) “where the activity regulated was a merely peripheral concern of the [NLRA as amended],” and (2) where it “touched interests so deeply rooted in local f eeling and responsibility that, in the absence of compelling congressional direction, [the Court] could not infer that Congress had deprived the States of the power to act.” 359 U. S., at 243–244.3 Cite as: 598 U. S. ____ (2023)

T HOMAS , J., concurring in judgment
instance to the [NLRB].” 359 U. S., at 242, 244–245. To do otherwise, it feared, “would create potential frustration of national purposes” and invite “the danger of state interfer

ence with national policy.” Id. , at 244–245. Justice Harlan concurred in the result, warning that the majority’s rule would “reduc[ e] to the vanishing point” States’ “power to redress wrongf ul acts in the labor field” and provide any “effective remedy under their own laws for . . . tortious conduct.” Id. , at 253–254. The years since have borne out that warning. Garmon elevates “even the remot

est possibility of conflict,” thereby “overstat[ing ] the likeli

hood and significance of conflicts and . . . set[ting] up an un

real goal of doctrinal and factual harmony.” L. Jaffe, Primary Jurisdiction, 77 Harv. L. Rev. 1037, 1053 (1964). In effect, “ Garmon doctrine completely pre-empts statecourt jurisdiction unless the Board determines that the dis

puted conduct is neither prot ected nor prohibited by the [NLRA].” Sears, Roebuck & Co. v. Carpenters , 436 U. S. 180, 199, n. 29 (1978). The majority opinion today underscores the strangeness of the Garmon regime. Here, the Supreme Court of the United States reassures a state court of its power to adju

dicate a state-law tort claim. The Court does so, not based on its own judgment that fede ral law does not pre-empt the claim, but because the NLRB’s existing precedents ade

quately remove any “[c]lou[d]” over the matter. 359 U. S., at 246. But, if the Board’s precedents left the matter “ar

guable” (and the NLRA did not plainly dictate an answer), then the state courts would be “ousted” of jurisdiction. Longshoremen v. Davis , 476 U. S. 380, 396 (1986). The up

shot of this approach appears to be that the scope of the NLRA’s pre-emption of state-co urt jurisdiction over state claims is defined—not by the statutory text—but by “pe

numbra[s]” that wax and wane as the Board develops, or declines to develop, its own carefully insulated common law4 GLACIER NORTHWEST, INC. v. TEAMSTERS

T HOMAS , J., concurring in judgment

of labor relations. Garmon

, 359 U. S., at 240 (internal quo

tation marks omitted). 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” pre-emption regime. Ante , at 2. 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 log

ical contradiction,” such that it is impossible to comply with both. Merck Sharp & Dohme Corp. v. Albrecht , 587 U. S. ___, ___ (2019) (T HOMAS , J., concurring) (slip op., at 2); see also PLIVA, Inc. v. Mensing , 564 U. S. 604, 617–618 (2011).A LITO , J., concurring

_________________

_________________ 1 Cite as: 598 U. S. ____ (2023)

A LITO , J., concurring in judgment 

## 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]

J USTICE A LITO , with whom J USTICE T HOMAS and J USTICE G ORSUCH join, concurring in the judgment. I agree with the Court that the Washington Supreme Court erred in holding that Glacier Northwest’s complaint is preempted under San Diego Building Trades Council v. Garmon , 359 U. S. 236 (1959). The National Labor Rela

tions Act (NLRA) protects the right to strike, but that right is subject to certain limitations and qualifications, see 29 U. S. C. §163, and this Court’s decisions make clear that the Act does not protect striking employees who engage in the type of conduct alleged here. This Court has long recognized that the Act does not “in

vest those who go on strike with an immunity from dis

charge for acts of trespass or violence against the em

ployer’s property.” NLRB v. Fansteel Metallurgical Corp.

, 306 U. S. 240, 255 (1939). To justify “despoiling [an em

ployer’s] property” or “the se izure and conversion of its goods,” we have reasoned, “would be to put a premium on resort to force instead of legal remedies.” Id., at 253. It follows that Garmon preemption does not prevent States from imposing liability on em ployees who intentionally de

stroy their employer’s property. See, e.g. , Machinists v. Wisconsin Employment Relations Comm’n , 427 U. S. 132, 136 (1976) (“Policing . . . destruction of property has been2 GLACIER NORTHWEST, INC. v. TEAMSTERS

A LITO , J., concurring in judgment held most clearly a matter for the States”); Construction Workers v. Laburnum Constr. Corp. , 347 U. S. 656, 669 (1954) (The NLRA does not allow employees to “destroy property without liability for the damage done”); Electrical Workers v. Wisconsin Employment Relations Bd. , 315 U. S. 740, 748 (1942) (The NLRA “was not designed to preclude a State” from regulating threats of property damage); see also Linn v. Plant Guard Workers , 383 U. S. 53, 61–62 (1966) (“ ‘[T]here is no ground for concluding that existing criminal penalties or liabilities for to rtious conduct have been elimi

nated’ ” by the NLRA); Bill Johnson’s Restaurants, Inc. v. NLRB , 461 U. S. 731, 741–742 (1983) (“It has . . . repeatedly been held that an employer has the right to seek local judi

cial protection from tortious conduct during a labor dis

pute”). Nothing more is needed to resolve this case. Glacier’s complaint alleges that the Union and its members acted “with the improper purpose to harm Glacier by causing [its] batched concrete to be des troyed.” App. 10; accord, id., at 14, 19–20. As the Court recognizes, they succeeded by “prompt[ing] the creation of the perishable product” and then ceasing work when the concrete was in a vulnerable
state. Ante, at 10 (emphasis deleted); see App. 10–13. Be

cause this Court has long rejected the Union’s claim that this kind of conduct is protected, Garmon preemption does not apply. See Longshoremen v. Davis , 476 U. S. 380, 395 (1986). 1

——————

1 The Court wisely declines to a ddress the argument on which J USTICE J ACKSON relies regarding the effect of the complaint before the NLRB on this litigation. See post , at 7–8. That argument represents a striking extension of Garmon preemption, which, as the Court notes, is already an “unusual” doctrine. See ante, at 3–4. If the state courts on remand dismiss this case on that ground, th e decision, in my judgment, would be a good candidate for a quick return trip here._________________

_________________ 1 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting 

## 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]

J USTICE J ACKSON , dissenting. The right to strike is fundamental to American labor law. Congress enshrined that right in the National Labor Rela

tions Act (NLRA) and simultaneously established the Na

tional Labor Relations Board to adjudicate disputes that arise between workers and management. That decision re

flected Congress’s judgment that an agency with special

ized expertise should develo p and enforce national labor law in a uniform manner, through case-by-case adjudica

tion. 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 pre

sented 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. Id. , at 245. 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 com

plaint alleges that the NLRA protects the strike conduct at the center of this state-court tort suit. The logical implica

tion of a General Counsel complaint under Garmon is that2 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting

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—in

cluding 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 ea

gerly 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 in tended for the Board to ad

dress after an investigation. And in the course of inappro

priately weighing in on the meri ts of those questions at this stage, the majority also misapplies the Board’s cases in a manner that threatens to both impede the Board’s uniform development of labor law and erode the right to strike. In my view, today’s misguided foray underscores the wis

dom of Congress’s decision to create an agency that is uniquely positioned to evaluate the facts and apply the law in cases such as this one. This case is Exhibit A as to why the Board—and not the courts—should ordinarily take the first crack at resolving cont entious, fact-bound labor dis

putes of this nature. Because the majority’s ruling suggests otherwise, I respectfully dissent.

I The majority’s brief opinion quotes Garmon ’s “arguably protected” test and endeavors to apply it. Ante

, at 3–4, 6– 11. But the opinion devotes relatively little space to the or

igins and purpose of that longstanding precedent. That omission is telling. A proper understanding of Garmon ’s foundation sheds considerable light on the majority’s se

quential missteps in this case.3 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting

A Congress’s passage of the NLRA “marked a fundamental change in the Nation’s labor policies.” Sears, Roebuck & Co.

v. Carpenters , 436 U. S. 180, 190 (1978). Prior to that point, union activity had been viewed as “a species of ‘conspir

acy,’ ” prompting substantial conflict between labor and management. Ibid. With the enactment of the NLRA in 1935, “Congress expressly recogn ized that collective organ

ization of segments of the labor force into bargaining units capable of exercising economic power comparable to that possessed by employers may produce benefits for the entire economy in the form of higher wages, job security, and im

proved working conditions.” Ibid. The heart of the NLRA is §7, which safeguards workers’ rights “to self-organization, to form, join, or assist labor or

ganizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac

tivities for the purpose of collective bargaining or other mu

tual aid or protection.” 29 U. S. C. §157. Among the “ ‘con

certed activities’ ” that the Act unquestionably protects is “the vital, economic instrumen[t] of the strike.” Garmon

, 359 U. S., at 241; see §163. Section 8 of the NLRA provides a list of “unfair labor practice[s]” that employers and unions are prohibited from engaging in. §158. For example, it is an unfair labor prac

tice for an employer to “interfere with, restrain, or coerce employees in the exercise of ” their §7 rights, including the right to strike. §158(a)(1). And it is an unfair labor practice for a union to “refuse to bar gain collectively with an em

ployer.” §158(b)(3). Taken together, §7 and §8 establish certain conduct that Congress has deemed protected (§7) and prohibited (§8).

B Congress could have stopped there. But “Congress did not merely lay down a substantive rule of law to be enforced4 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting
by any tribunal competent to apply law generally to the par

ties.” Garner v. Teamsters , 346 U. S. 485, 490 (1953). Ra

ther, Congress “went on to confide primary interpretation and application of its rules to a specific and specially con

stituted tribunal”: the National Labor Relations Board. Ibid. ; see generally §§153–156. By statutory mandate, the Board is composed of five members who are appointed by the President with the ad

vice and consent of the Senate. §153(a). Congress also pro

vided for an independent General Counsel, who is likewise presidentially appointed and Senate confirmed. §153(d);

see NLRB v. Food & Commercial Workers , 484 U. S. 112, 117–118 (1987). The General Counsel conducts investiga

tions into unfair labor practices and brings complaints be

fore the Board through a “particular procedure” that Con

gress has prescribed “for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order” from the Board. Gar

ner , 346 U. S., at 490; see §§153, 160. The Board has fleshed out this process via rulemaking authority that Congress has delegated. §156. If a person believes that an employer or union has committed an unfair labor practice, the person may f ile a charge with a regional director, who acts on behalf of the General Counsel. 29 CFR §101.2 (2022). The regional director investigates the charge. §101.4. If “the charge appears to have merit and efforts to dispose of it by informal adjustment are unsuc

cessful,” the regional director issues a complaint on behalf of the General Counsel. §101.8. When a General Counsel’s complaint issues, an administrative law judge (ALJ) holds a hearing and issues a decision, which the Board reviews if any party files an exception. §§ 101.8–101.12 . If the Board finds that a party has engaged in an unfair labor practice, it must order the party to “cease and desist” and to take “such affirmative action . . . as will effectuate the policies” of the NLRA. 29 U. S. C. §160(c).5 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting

C The history and structure of the NLRA make clear that Congress “entrusted administration of the labor policy for the Nation to a centralized administrative agency”—the Board—“armed with its own pr ocedures, and equipped with its specialized knowledge and cumulative experience.” Gar

mon , 359 U. S., at 242. Congress thought the Board’s pri

mary role was “necessary to obtain uniform application of [the NLRA’s] substantive rules and to avoid th[e] diversi

ties and conflicts likely to resu lt from a variety of local pro

cedures and attitudes toward labor controversies.” Garner

, 346 U. S., at 490. That judgment makes perfect sense. The NLRA’s substantive principles are intrinsically broad and potentially conflicting, leaving much for future articulation through case-by-case adjudication. Drawing the line be

tween activities that constitu te a protected strike, on the one hand, and unprotected actions for which employers may validly discipline employees, on the other, is a legally and factually complex task. Moreov er, that task implicates im

portant economic policy considerations about the relative bargaining power of labor and management that affect not only the parties to a particular labor dispute but also our broader national economy. To effect Congress’s intent, this Court has consistently recognized that “courts are no t primary tribunals to adjudi

cate [these] issues.” Garmon , 359 U. S., at 244. Rather, “it is to the Board that Congress entrusted the task of applying the Act’s general . . . language in the light of the infinite combinations of events which might be charged as violative of its terms.” Beth Israel Hospital v. NLRB , 437 U. S. 483, 500–501 (1978) (internal quotation marks omitted). And the Board, “if it is to accomplish the task which Congress set for it, necessarily must have authority . . . to fill the in

terstices of the broad statutory provisions.” Id. , at 501. So, while the Board’s decision “is not the last word” on these6 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting
complex matters—given that its decisions are subject to re

view in federal court—“it must assuredly be the first .” Ma

rine Engineers v. Interlake S. S. Co. , 370 U. S. 173, 185 (1962) (emphasis added). For that reason, this Court has long held that courts pre

sented with claims arising out of a labor dispute must some

times pause their proceedings to permit the Board to con

sider the dispute in the first instance. As relevant here, we have held that if §7—including its protection of the right tostrike—“arguably” protects the conduct at issue in a statecourt suit, then the court must await the Board’s word as to whether the conduct is, in fact, protected. Garmon , 359 U. S., at 245. To determine whether condu ct is “arguably protected,” a state court examines the showing of the party invoking Gar

mon and seeking to pause the litigation. The court asks whether that party has (1) “advance[d] an interpretation of the [NLRA] that is not plainl y contrary to its language and that has not been ‘authoritative ly rejected’ by the courts or the Board,” and (2) “put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation.” Longshoremen v. Davis

, 476 U. S. 380, 395 (1986). If so, the state court must pause proceedings to allow the Board to consider the complex legal and factual contours of the question whether the union’s conduct is actually protected by the NLRA. The majority refers to this as “ Garmon preemption,” in keeping with historical practice. Ante , at 3. But the term “preemption” is something of a misnomer. Rather than en

tirely and automatically precluding the state-court suit, the rule instead requires state cou rts to take a “jurisdictional hiatus” while the Board considers the dispute in the first instance. Sears, Roebuck & Co. , 436 U. S., at 203. If the Board determines (subject to ju dicial review) that §7 pro

tects the union’s conduct, normal conflict preemption kicks in: A state court may not hold a union liable on state-law7 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting claims for conduct that is protected by the NLRA. See Brown v. Hotel Employees , 468 U. S. 491, 503 (1984). But “if the Board decides that the conduct is not protected,” the state court may proceed to “entertain the litigation.” Davis

, 476 U. S., at 397. 1 With these general principles in mind, I now turn to the particulars of this case.

II This suit arises out of a union-organized strike. Peti

tioner Glacier Northwest is a concrete-delivery company, and respondent International Brotherhood of Teamsters Local Union No. 174 (Union) re presents Glacier’s concretedelivery truckdrivers. After the drivers went on strike, Glacier sent disciplinary letters to some of the drivers. The Union filed an unfair labor practice charge with the Board, alleging that the disciplinary letters were unlawful retalia

tion against the drivers for enga ging in strike conduct that is protected by the NLRA. Glacier then filed a complaint in Washington state court, alleging that the Union engaged in tortious conduct when it instructed the drivers to strike at a time when there was wet concrete in some of the company’s delivery trucks. In response, the Union filed another Board charge, maintain

ing that Glacier’s lawsuit co nstituted additional unlawful retaliation.

——————

1 J USTICE T HOMAS seeks to undercut our Garmon precedent by describ

ing it as “od[d]” and “strang[e]” relative to “ ‘the usual preemption rule.’ ” Ante , at 1, 3 (opinion concurring in judgment). But, as discussed, the Garmon rule is not a standard preemption doctrine; it is different be

cause it is doing different work. Garmon protects Congress’s judgment that the Board, not state or federal courts, should be generally responsi

ble for the development of our Nation’s labor law. The required pause when Garmon ’s “arguably protected” test is satisfied allows for efficient resolution of the dispute prior to th e expenditure of state judicial re

sources, and the temporary nature of the pause makes it narrower, not broader, in effect than ordinary preemption.8 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting With respect to Glacier’s tort suit, the Washington courts engaged in the standard Garmon inquiry, ultimately result

ing in a determination by the Washington Supreme Court that the lawsuit could not proceed because the Union’s strike conduct was arguably pr otected by the NLRA. Glac

ier sought, and we granted, certiorari to review that deci

sion. Notably, however, af ter the Washington Supreme Court issued its decision, the regional director acting on be

half of the Board’s General Counsel filed an administrative complaint against Glacier. In my view, for the reasons ex

plained below, that subsequent event has greatly simplified the Garmon question.

A The filing of the General Counsel’s administrative com

plaint necessarily suffices to establish that the Union’s strike conduct is “arguably protected” within the meaning of Garmon . Thus, the General Counsel’s complaint should have marked the end of any court involvement in this mat

ter at this time. The General Counsel’s complaint alleges that Glacier in

terfered with strike conduct protected by §7 when it disci

plined its drivers for walking off the job and when it filed this tort suit. That complain t represents the General Coun

sel’s conclusion—reached after an extensive independent investigation involving collecting testimony and other evi

dence, and after careful consid eration of the competing le

gal principles and policy concerns—that the Union’s claim that its strike conduct was protected “appears to have merit.” 29 CFR §§101.4, 101.8. One “cannot credibly con

tend that a claim that makes it through this gauntlet does not concern conduct ‘arguably’ protected by the NLRA.” Da

vis Supermarkets, Inc. v. NLRB , 2 F. 3d 1162, 1179 (CADC 1993); accord, Makro, Inc. , 305 N. L. R. B. 663, 670 (1991).

A court presented with a General Counsel complaint should therefore find Garmon inherently satisfied. This is9 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting so because the entire point of Garmon ’s arguably-protected test is to permit the court to assess the facts and relevant labor law in service of a gatekeeping function. The answer to the Garmon question simply (and solely) establishes whether the court can continue to entertain a lawsuit that relates to the challenged strike conduct, or whether the le

gal action must be suspended to allow the Board to make an initial assessment of the matter. The court evaluates the existing evidence and the law for a specific reason: to determine whether the lawsuit attacks arguably-protected conduct such that entertaining the legal action will inter

fere with the Board’s prerogative to develop the facts and adjudicate the merits of the dispute as part of the Board’s broader authority to develop national labor law. If the General Counsel investigates the matter and files a complaint with the Board alleging that the union’s con

duct is protected, it becomes indisputable that the pending legal action might interfere with the Board’s authority. Thus, a General Counsel complaint relieves the court of the burden of having to make the arguably-protected assess

ment based on its own understanding of the evidence and labor law—it is “arguable” that the union’s conduct is pro

tected because the General Counsel is arguing just that. To be sure, we have said that the arguably-protected test is “not without substance” and is “not satisfied by a conclusory assertion of pre-emption.” Davis , 476 U. S., at 394. But an allegation from the Board’s General Counsel after a thor

ough investigation is a far cry from a “conclusory assertion” of protection. 2 What is more, by virtue of the General Counsel’s com

plaint, the Board is, at this very moment, exercising its au

thority to adjudicate the merits of this dispute. On January

——————

2 This is not to suggest that the General Counsel’s complaint is the end of the story, as the Board may ulti mately disagree with the factual or legal basis of that pleading. But the complaint is surely sufficient to es

tablish arguable protection, such that a co urt should stay its hand.10 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting
12, 2023, an ALJ denied Glacier’s motion to postpone the ALJ hearing on the General Counsel’s complaint pending this Court’s decision in this ca se. As the ALJ explained, the General Counsel’s pleading “constituted a determination that the strikers’ conduct wa s at least arguably protected by [the NLRA] and that this agency became the exclusive forum for adjudicating whether the strikers’ conduct was protected.” 3 A nine-day hearing ensued, and the parties completed posthearing briefing last week. We have said that “the need for protecting th e exclusivity of [the Board’s] jurisdiction is obviously greatest when the precise issue brought before a court is in th e process of litigation through procedures originating in the Board.” Marine Engineers

, 370 U. S., at 185. That is exactly the situation here. For these reasons, I believe that the filing of the General Counsel’s complaint is more than sufficient to trigger Gar

mon ’s pause, and that it must be so if consistency with Con

gress’s intent to give the Board primary authority to inter

pret and enforce the NLRA is to be maintained. In circumstances like these, “the States as well as the federal courts must defer to the exclusive competence of the Na

tional Labor Relations Board.” Garmon , 359 U. S., at 245. And this Court is no exception. Because the General Coun

sel has now filed a complaint with the Board concerning the labor dispute at issue in this case, all courts—including this one—should stand down.

B The majority does not take issue with my conclusion that the General Counsel’s complaint triggers a Garmon hiatus; instead, it takes no position on the matter, leaving the ques

tion open for the Washington co urts to decide on remand. Ante

, at 11, n. 3.

——————

3 Order Denying Motion for Postponement of Hearing in Glacier North

west, Inc. , Nos. 19–CA–203068, 19–CA–211776, p. 7.11 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting The majority’s reason for declining to address this argu

ment is noteworthy. It explains that, because the General Counsel’s complaint was filed after the Washington Su

preme Court had affirmed the dismissal of Glacier’s com

plaint on Garmon grounds, “[t]he lowe r courts have not ad

dressed the significance, if any, of the Board’s complaint with respect to Garmon preemption.” Ante , at 11, n. 3

. And since we are “ ‘a court of review, not of first view,’ ” ibid. (quoting Cutter v. Wilkinson , 544 U. S. 709, 718, n. 7 (2005)), the majority declines to “do so in the first instance.” Ante , at 11, n. 3

. This rationale is inconsistent with the broader approach that the majority takes in this case. It would be one thing if the Court simply noted the filing of the General Counsel’s complaint and authorized the lower courts to evaluate the impact of that complaint on the Garmon question in the first instance. But it goes further: The majority also inserts itself into the midst of this labor dispute now (despite the General Counsel’s complaint), proceeding to apply the Board’s cases to novel and difficult line-drawing questions and ultimately concluding that the strike conduct alleged in Glacier’s complaint is not even arguably protected. The majority cannot have it both ways. A concern about the Court’s institutional role justifies, at most, vacating the judgment below and remanding for the lower court to con

sider the import of the General Counsel’s complaint. The same observation that compels the majority to allow for such lower-court consideration—that we are “ ‘a court of re

view, not of first view,’ ” ante , at 11, n. 3—should have like

wise led it to decline to intrude into this labor dispute while it is pending before the Board.

III For the reasons discussed above, I would have vacated the Washington Supreme Court’s judgment and remanded12 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting with directions to stay proceedings or dismiss Glacier’s com

plaint without prejudice, on the straightforward ground that the General Counsel’s co mplaint triggers the jurisdic

tional hiatus that Garmon requires. 4 The majority sidesteps my preferred resolution of this matter and instead proceeds to engage in Garmon ’s “argu

ably protected” test by applyi ng a series of fact-intensiveBoard decisions to the bare allegations in Glacier’s statecourt complaint. To do this, the majority invokes the Board’s “reasonable precautions” principle. Ante , at 6–8. That principle (discussed in Part IV, infra ) is derived from the Board’s determination that striking workers must take reasonable precautions to protect persons, the employer’s premises, and its equipment from foreseeable, aggravated, and imminent harm due to the sudden cessation of work. The majority has taken it upon itself to apply the Board’s reasonable-precautions principle to the factual allegations about the Union’s conduct that Glacier alleges in this law

suit, and it thereby concludes that the drivers’ conduct is not even arguably protected by the NLRA. This course of action (which is already confounding given that the Board itself is currently considering the challenged strike conduct with the benefi t of developed facts and labor law expertise) reflects an analytic al approach to the issues presented that cannot be squared with Garmon

. A Whether the NLRA protects pa rticular strike conduct of

ten turns on subtle factual disputes and nuanced legal dis

tinctions. Here, for example, whether the Union’s strike conduct is protected or unpro tected might well depend on

——————

4 The Washington Supreme Court affi rmed the dismissal of Glacier’s claims. Because only a pause of th e state-court litigation is necessary under Garmon , the proper disposition is eith er a stay of proceedings or dismissal without prejudice.13 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting whether the drivers left the concrete-delivery trucks’ re

volving drums turning when they walked off the job. So, too, might it depend on fine legal gradations concerning how imminent or how aggravated the risk of harm must be to trigger the duty to take reasonable precautions. These kinds of determinations cry out for evidentiary hearings, and in this highly fact-sensitive area of the law, which gen

erally develops on a case-by-case basis, the scope of NLRA protection in a given set of circumstances is typically deter

mined once the facts have been established—through dis

covery, debate, and sometimes the tedious work of making contentious credibility determinations. Fortunately, in this regard, Congress has gifted our legal system with an expert agency that thoroughly investigates what happened— i.e.

, the facts of strike-related labor dis

putes—and then engages in the initial task of answering the sometimes complex, always fact-bound question whether the NLRA protects the strike conduct at issue. Meanwhile, a court that is undertaking Garmon ’s arguablyprotected analysis is engaged in a fundamentally different inquiry. As explained in Part II–A, supra , while the court is most certainly considering strike conduct arising from a labor dispute, it is not meant to address the merits of these complex questions. Under the NLRA and Garmon , courts must take as a given that the Board is the entity to which Congress has assigned responsibility for initially determin

ing what happened and taking the first crack at deciding whether the NLRA protects the union’s conduct. And far from usurping that Board function, Garmon tasks the court with merely conducting a threshold, gatekeeping assess

ment of whether the lawsuit before it must be paused, or whether the suit can proceed because it is not even arguable that the conduct at issue in the lawsuit is protected by the NLRA. To avoid veering into the Board’s assigned territory, it is crucial that the courts have a clear understanding of the14 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting

nature of the Garmon assessment and what it requires. The court asks, first of all, whether the party invoking Gar

mon has “advance[d] 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.” Davis

, 476 U. S., at 395. This inquiry involves merely comparing the union’s claim about the scope of its protection to the broad protective language of the statute and deciding whether the union’s interpreta tion has already been defin

itively rejected either by courts or by the Board. The second task is to determine whether the party invok

ing Garmon has “put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation.” Davis

, 476 U. S., at 395

.Again, this is not an invitation to supplant the Board’s factfinding role or to usurp the authority that Congress hasgiven the Board to make the initial underlying protectedor-unprotected determination. Rather, the point of this part of the Garmon assessment is simply to determine whether it is arguable that the Board—in the exercise of its discretion to develop labor la w and aided by its investiga

tion into the facts—could conclude that the strike conduct at issue is protected by the NLRA. See 359 U. S., at 245. Thus, consistent with a statutory scheme that gives pri

macy to the agency’s expertise, a court’s task under Garmon is unmistakably modest. It must merely assess whether, in light of existing law and th e evidence that has been amassed related to this strike, it is possible that the union could prevail before the Board. Put another way, instead of stepping into the Board’s shoes as primary factfinder, or even prognosticating about what the Board is likely to de

cide concerning the extent of NLRA coverage, a court that stands down upon a proper Garmon analysis has simply de

termined (1) that existing law does not plainly and author

itatively prohibit the strike conduct at issue, and (2) that evidence exists concerning how the strike was conducted15 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting that might ultimately favor the union, such that the lawsuit should pause to allow the Boar d to gather the facts and ap

ply its expertise to determin e whether the strike was law

ful.

B The majority seems to misunderstand all this in the con

text of this case. It correctl y concludes that the Union has carried its burden of “advancing an interpretation of the [NLRA] that is not plainly con trary to its language and that has not been authoritatively rejected by the courts or the Board.” Ante , at 6 (internal quotation marks omitted). But it finds that the Union has failed to satisfy the second Gar

mon step, and it does so after undertaking its own assess

ment of the facts alleged in Glacier’s complaint and endeav

oring to apply the Board’s fact-bound reasonableprecautions precedents. See, e.g. , ante , at 7 (determining, based on alleged facts, that “[t]he drivers engaged in a sud

den cessation of work that put Glacier’s property in foresee

able and imminent danger” and that the risk of harm to the concrete-delivery trucks was “both foreseeable and seri

ous”); ibid. (concluding that “[t]he Union failed to ‘take rea

sonable precautions,’ ” after hypothesizing various steps that, according to the majority, the Union should have taken but did not). Given what I have already said about Garmon ’s purpose and what it calls for, the majority’s error in proceeding in this fashion is obvious. To my mind, if a court that is eval

uating what to do per Garmon finds itself weighing in on such fact-bound matters as whether the strike posed a risk of harm that was aggravated enough or imminent enough to remove NLRA protection, or starts contemplating whether the precautions that the striking employees took to address any such risk were reasonable enough to allow them to retain the right to strike, it has unwittingly wan

dered into a domain that Co ngress intentionally assigned16 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting

to the Board to address in the first instance. 5 It is clear to me that Congress plainly intended for the Board’s factfinding function to be at the forefront of this kind of legal evaluation. Thus, in my view, when a court undertakes the Garmon analysis in a context such as this one, it should take care to limit itself to its own assigned responsibility: the mere determination of whether, given the union’s evidence and legal interpretation, the Board could possibly conclude that the union had taken reasona

ble precautions. If yes, the court should suspend the pend

ing legal action to let the Bo ard decide the question. Toconclude no, given the fact-bound nature of the reasonableprecautions analysis, a court in all but the most exceptionalcircumstances will need to be able to point to a reasonableprecautions case from the Board that is on all fours with the facts of the case before it and that found the conduct unpro

tected. In that circumstance, the court can proceed with the suit, without breaking new legal ground on the scope of the right to strike. In all events, then, courts can properly decide the Gar

mon issue without making law in this area, precisely as Congress intended. Indeed, I think we best respect congres

sional intent regarding the Board’s authority to develop uniform labor law by leaving the application of the Board’s reasonable-precautions principle to the Board itself. The majority’s contrary approach opens up the possibility that courts around the country will now act on bare allegations

——————

5 Justice Blackmun warned that a formulation of the Garmon test that directs attention to a party’s evidence might lead some courts to make such an errant assessment, “under th e guise of weighing the sufficiency of the evidence.” Longshoremen v. Davis , 476 U. S. 380, 404 (1986) (opin

ion concurring in part and dissentin g in part) (expressing the concern that a future court might misunderst and its role and mistakenly under

take “[to] mak[e] precisely the determination that Garmon makes clear is for the Board, and only the Board, to make”). That warning was pres

cient.17 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting to generate conflicting results about the contours of the ven

erated right to strike, which, ironically, was the primary concern that motivated Congre ss to create the Board in the first place.

IV For what it’s worth, even if the majority’s approach to de

ciding the Garmon question were the correct one, the ma

jority misapplies the reasonable-precautions principle to the allegations here in a manner that threatens to impinge on the right to strike and on the orderly development of la

bor law.

A 1 A strike, by definition, is a “concerted stoppage of work by employees,” or “any conc erted slowdown or other con

certed interruption of operations by employees.” §142(2). When employees stop working, production may halt, deliv

eries may be delayed, and services may be canceled. At the risk of stating the obvious, this means that the workers’ right to strike inherently includes the right to impose eco

nomic harm on their employer. Congress was well aware that organized labor’s exercise of the right to strike risks harm to an employer’s economic interests. See §151; NLRB v. Erie Resistor Corp. , 373 U. S. 221, 234 (1963) (Congress’s protection of the right to strike reflects its understanding that strikes are authorized “eco

nomic weapon[s]”). Yet, Cong ress protected that right any

way. In fact, the threat of economic harm posed by the right to strike is a feature, not a bug, of the NLRA. The potential pain of a work stoppage is a powerful tool, and one that un

questionably advances Congress’s codified goal of achieving “equality of bargaining power between employers and em

ployees.” §151

. Unions leverage a strike’s economic harm (or the threat of it) into bargaining power, and then wield18 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting that power to demand improvement of employees’ wages and working conditions—goals that, according to Congress, benefit the economy writ large. See Sears, Roebuck & Co.

, 436 U. S., at 190. Still, the right to strike is, of course, not unlimited. But when “Congress chose to qualify the use of the strike, it did so by prescribing the limits and conditions of the abridg

ment in exacting detail.” Erie Resistor , 373 U. S., at 234. Section 8 enumerates several limitations. For example, a union must notify an employer that it intends to terminate or modify its contract—and thus that a strike is possible— at least 60 days before striking. §158(d). A union cannot strike for unlawful purposes, such as putting economic pressure on parties other than the primary employer. §158(b)(4)(i)(B). And, in certain healthcare settings, unions must provide at least 10 days’ notice of the precise date and time of a strike. §158(g). Additionally, §163 of the NLRA (which Congress added via the 1947 Taft-Hartley Amendments, 61 Stat. 151) states that “nothing in this subchapte r, except as specifically pro

vided for herein, shall be constru ed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.” Thus, the text of the NLRA allows for only two kinds of limitations on the right to strike: those enumerated in the Act itself, and the “limitations or qualifications” on the right that existed when the Taft-Hartley Amendments were enacted. See NLRB v. Drivers , 362 U. S. 274, 281–282 (1960). The only relevant limitation here is the one set out in NLRB v. Fansteel Metallurgical Corp. , 306 U. S. 240 (1939). 6

——————

6 The Senate Report accompanying the Taft-Hartley Amendments ex

plained the four kinds of pre-existing “limitations or qualifications” on the right to strike that Congress had in mind in §163, which were drawn from decisions of the Board and this Court. See S. Rep. No. 105, 80th Cong., 1st Sess., 28 (1947); Drivers , 362 U. S., at 281–282. The three19 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting

Our Fansteel decision stands for the principle that “em

ployees ha[ve] the right to strike but they ha[ve] no license to commit acts of violence or to seize their employer’s plant.” Id ., at 253. The facts of that case involved 95 striking em

ployees who effected a “sit-down strike by taking over and holding two of [their employer’s] key buildings.” Id. , at 248 (internal quotation marks omitted). The employees subse

quently engaged in “a pitched battle” in which they “re

sisted the attempt by the sheriff to evict and arrest them.” Id. , at 249. We held that the NLRA did not condone this conduct, which would “put a premium on resort to force” and would “subvert the principles of law and order which lie at the foundations of society.” Id. , at 253. Congress’s incorporation of Fansteel ’s limitation into the NLRA establishes that, while employees have the right to withhold their labor peaceably, subsequent affirmative acts of violence, or seizure of an employer’s premises, are not protected labor practices.

2 As a general matter, the dispute in this case is over whether employees can withhold their labor if doing so risks damage to their employer ’s property. As explained above, by carefully restricting limitations on the right to strike in the NLRA itself, Congress has indicated that the act of peacefully walking off the job is protected strike con

duct even if economic harm incidentally results. What is
not protected is any subsequent affirmative step to destroy or seize the employer’s property. This is the statutory back

drop against which the Board has developed the narrow re

quirement that striking employees must take reasonable precautions before or when they strike in order to forestall or address foreseeable, immine nt, and aggravated injury to

—————— other exceptions concern strikes for illegal objectives, strikes in breach of contract, and strikes in breach of other federal law. See S. Rep. No. 105, at 28.20 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting
persons, premises, and equipment that might otherwise be caused by their sudden cessation of work. The Board first applied this “reasonable precautions” principle to rank-and-file employees in Marshall Car Wheel & Foundry Co., Inc. , 107 N. L. R. B. 314, 315 (1953), enf. denied on other grounds, 218 F. 2d 409 (CA5 1955). There, employees at a foundry walked off the job at a time when the foundry’s furnace was full of hot molten iron, threaten

ing severe damage to the empl oyer’s plant and equipment. 107 N. L. R. B., at 315. The Board concluded that the em

ployees’ strike conduct was not protected by the NLRA, be

cause the employees had a “duty to take reasonable precau

tions to protect the employer’s physical plant from such imminent damage as for[e]seeably would result from their sudden cessation of work.” Ibid. The Board has also applied this principle in other similar cases. It determined, for example, that strikers who walked out of a certain kind of chemical plant—a plant that han

dled “extremely hazardous” chemicals that were “a hazard not only to employees but also to individuals living in the vicinity”—without shutting down the equipment had en

gaged in unprotected conduct. General Chemical Corp. , 290 N. L. R. B. 76, 77, 83 (1988). Similarly, the Board held that the strike conduct of security guards whose walkout ex

posed a federal building’s occupants to “imminent” danger was not protected by the NLRA. International Protective Servs., Inc. , 339 N. L. R. B. 701, 703 (2003). But the narrow duty that Marshall Car Wheel and its progeny impose does not—and cannot—displace the gen

eral rule that labor strikes are protected even when the workers’ withdrawal of their labor inflicts economic harm on the employer. So the Board has also repeatedly held that employees have no duty to prevent the loss of perishable goods caused by their sudden cessation of work. In a leading case, employees at a raw poultry plant de

-21 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting cided to walk out at 8 a.m. “because by that time all employ

ees would have reported to work and [the employer] would be in full operation with its largest number of chickens on the line.” Lumbee Farms Co-op. , 285 N. L. R. B. 497, 503 (1987). The Board affirmed the ALJ’s reasoning that “[t]he fact that the strike occurre d during the workday when chickens were on the line and vulnerable to loss does not mean employees automatically lost protection under the Act,” because “[s]trikers are not required under the Act to institute the strike at a specific time of day.” Id. , at 506. Indeed, it is “[n]orma[l]” for “planned employee strikes [to be] timed to ensure the greatest impact on an employer.” Ibid. The Board has applied this same reasoning in cases in

volving, for example, cheese and milk. See Leprino Cheese Co. , 170 N. L. R. B. 601, 605 (1968); Central Okla. Milk Pro

ducers Assn. , 125 N. L. R. B. 419, 435 (1959). In those cases, the Board also explained that the reasonable-precau

tions principle is “ limited to situations involving a danger of ‘aggravated’ injury to persons or premises”—a danger “[o]bviously” not posed by the loss of, for example, cheese. Leprino Cheese , 170 N. L. R. B., at 607 (emphasis added). The Board has consistently reiterated that “[l]oss is not un

common when a strike occurs.” Central Okla. Milk Produc

ers , 125 N. L. R. B., at 435. In short, it is indisputabl e that workers have a statutory right to strike despite the fa ct that exercising that right risks economic harm to employers. Congress has, in effect, drawn a line between those econ omic harms that are inher

ent in the act of peacefully walking off the job (which do not render the strike unprotected), and those that result from workers taking subsequent a ffirmative steps to seize the employer’s premises or engage in acts of violence (strike conduct that is not protected by the NLRA). The Board has further recognized a narrow duty that arises if a sudden22 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting

cessation of work risks fore seeable, imminent, and aggra

vated harm to persons, premises, or equipment. Beyond this narrow reasonable-precaut ions requirement, however, employees have no obligation to protect their employer’s economic interests when they exercise the right to withhold their labor.

B Glacier does not allege that the cement truckdrivers com

mitted acts of violence or seized its plant or property as part of the strike the Union orchestra ted. Instead, the thrust of its complaint is that the Union was aware of “the perishable nature of batched concrete,” App. 9, and that the drivers’ walkout was intentionally timed so as to risk harm to that product. See id. , at 10 (alleging “sabotage, ruination and destruction of Glacier’s batched concrete”). I agree with the majority that the risk of losing the batched concrete alone would no t be sufficient to divest the striking drivers of statutor y protection. As Glacier acknowledges, wet concrete is a perishable good. Ibid. And the Board has repeatedly reaffirmed that the loss of such perishable goods due to a mere work stoppage does not ren

der a strike unprotected. There is also no duty to take reasonable precautions to prevent this kind of economic loss, which—standing alone—posed no risk to persons, premises, or equipment, let alone a risk of aggravated harm. While it seems that the drivers were in a position to save the batched concrete that was inside their trucks when the strike was called (by, for instance, continuing to deliver it to the intended custom

ers), that is beside the point. Employees have a protected right to withhold their labor. And it would undercut that right if they could be held liable for the incidental loss of the perishable goods (which includes concrete no less than raw poultry, cheese, or milk) that they tend to as part of their23 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting
job. 7 Where I disagree with the majority is the conclusion it draws from the fact that the batched concrete also risked harm to the drivers’ trucks, at least as alleged in Glacier’s complaint. The majority repeatedly ties the loss of the con

crete—in particular, the risk that it would harden in the trucks—to the alleged risk of harm to the delivery trucks themselves. 8 But, to me, the alleged risk of harm to Glac

ier’s trucks involves a relati vely complex factual analysis under the Board’s reasonable-precautions principle. Glacier alleges that, “[o]nce at rest, concrete begins hard

ening immediately, and depending on the mix can begin to set within 20 to 30 minutes.” Id. , at 8. Its complaint also asserts that “[i]f batched con crete remains in the revolving drum of the ready-mix truck beyond its useful life span, the batched concrete is certain or substantially certain to

——————

7 J USTICE A LITO , relying on the rule from NLRB v. Fansteel Metallur

gical Corp ., 306 U. S. 240 (1939), gleans more from the loss of concrete than either the majority or I do. He concludes that the NLRA’s right to strike does not protect the drivers’ alleged conduct because Glacier has alleged that the drivers purposefully caused the batched concrete to be destroyed. In my view, that approach fails to appreciate the distinction Fansteel drew between purposefully but peacefully stopping work (and the economic consequences that flow from that decision), which is pro

tected, and taking subsequent, affirmat ive steps of violence or property seizure, which is unprotected. To be sure, Fansteel would have rendered the drivers’ actions here patently un protected if they had taken the af

firmative steps of stealing the trucks, slashing the trucks’ tires, or dump

ing out the concrete after they went on strike. But nothing like that is alleged in Glacier’s complaint.

8 See, e.g. , ante , at 8 (“[T]he Union executed the strike in a manner designed to compromise the safety of Glacier’s trucks and destroy its con

crete”); ante , at 10 (“[The drivers] 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’ ”); ante , at 12 (“The Union’s actions not only re

sulted 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”).24 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting harden in the revolving drum and cause significant damage to the concrete ready-mix truck.” Id. , at 9. But Glacier’s own submissions in Washington state court suggest that the Union instructed the drivers to return their trucks toGlacier’s yard after the strike began and to keep the readymix trucks running. See id. , at 34, 77. Glacier’s submis

sions also suggest that those precautions actually provided the company’s managers and nonstriking employees with sufficient time to decide how to address the situation to pre

vent any harm to the trucks. See id. , at 13, 72, 77, 82–83. Was any risk of harm to the trucks here “imminent,” given the allegation that the Union instructed the drivers to keep the trucks running? Is the risk of concrete harden

ing in a delivery truck “aggravated,” in the way Marshall Car Wheel contemplates? Was returning the trucks to the employer’s premises and leaving them running a sufficient “reasonable” precaution, because it gave the employer suf

ficient time to address any risk of harm? Making the call about whether the NLRA protects the Union’s conduct raises these questions and others. Importantly, these kinds of questions not only involve making nuanced factual dis

tinctions but also demonstrate that applying the Board’sreasonable-precautions precedents is, at bottom, a linedrawing exercise. Under circumstances like these, a court can confidently declare that a union’s conduct is not even arguably protected for Garmon purposes only where the al

legations make out a clear Fansteel claim or where the al

leged facts implicate a reasonable-precautions case that is directly on point. Because neither is true here, the Court should have concluded that the Union’s conduct was at least arguably protected. Even if the Court’s task under Garmon were to apply the Board’s reasonable-precautions principle to the allegations of Glacier’s complaint and decide whether or not the Union engaged in unprotected conduct (to reiterate: that is not the assignment, see Part III–A, supra ), I cannot agree with the25 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting majority’s conclusion that the risk to the trucks rendered the drivers’ strike unprotected by the NLRA. Instead, I would have credited Glacier’s own account, and thus would have concluded that the Union took reasonable precautions when it instructed the drivers to return the trucks and leave them running to avoid the concrete hardening immi

nently in the drums. The majority reaches the opposite con

clusion by giving far too little weight to the allegation that the drivers returned the trucks, and also by substantially discounting the allegations that support the Union’s claim that the drivers left their trucks and revolving drums run

ning. See ante , at 11. Fortunately, the pending Board determination of what actually happened in connection with this particular strike will establish—as a matter of fact and not mere allega

tion—what precautions (if any) the drivers actually took and what harm (if any) the Union’s conduct actually posed to Glacier’s trucks. 9 But our different takes on these alle

gations only underscore the potential for variable outcomes when courts apply the Board’s fact-dependent principles to bare assertions. 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,” ante , at 10, I see nothing aggravatedor even untoward about that conduct. Glacier is a concretedelivery company whose drivers are responsible for deliver

ing 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

——————

9 For the same reason, the state court would not be bound by the ma

jority’s recitation of the facts at th is motion-to-dismiss stage in any fu

ture proceedings on this matter in state court.26 GLACIER NORTHWEST, INC. v. TEAMSTERS

J ACKSON , J., dissenting some obligation on the drivers to strike in the middle of the night or before the next day’s jobs had started. To the con

trary, it was entirely lawful for the drivers to start their workday per usual, and for the Un ion to time the strike to put “maximum pressure on the employer at minimum eco

nomic cost to the union.” NLRB v. Insurance Agents , 361 U. S. 477, 496 (1960); see also Lumbee Farms Co-op. , 285 N. L. R. B., at 506. Nor was the onus of protecting Glacier’s economic inter

ests 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. 10 What Glacier seeks to do he re 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 al

ready permitted via the reaso nable-precautions principle. In my view, doing that places a significant burden on the employees’ exercise of their st atutory right to strike, unjus

tifiably undermining Congress’s intent. Workers are not indentured servants, bound to continue laboring until any planned 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.

* * * Today, the majority fails, in multiple respects, to heed Congress’s intent with respect to the Board’s primary role in adjudicating labor disputes, despite ostensibly applying

——————

10 For example, Glacier could have instituted a lockout, see American Ship Building Co. v. NLRB , 380 U. S. 300, 310 (1965), used nonstriking employees to deliver the batched conc rete, or had temporary replacement drivers lined up and ready to go. Glacier was on notice that a strike was possible because the Union was statutorily required to give 60-days ad

vance notice of the proposed terminat ion or modification of the collectivebargaining agreement, §158(d), and because negotiations had broken down.27 Cite as: 598 U. S. ____ (2023)

J ACKSON , J., dissenting

Garmon , the bedrock case on that issue. The Court’s ruling is likely to cause considerable confusion among the lower courts about what Garmon requires. And any such confu

sion not only threatens to encroach upon the Board’s pre

rogatives, as Congress has assigned them, but also risks erosion of the right to strike. Yet, the posture of this case provides an opportunity to mitigate the results of the ma jority’s errors. On remand, the state court should dismiss Glacier’s complaint without prejudice or stay its proceedin gs in view of the General Counsel’s complaint. Meanwhile, the Board—which is not bound by the allegations in Glacier’s complaint when mak

ing its assessment, and is well equipped to make findings of fact concerning the strike conduct at issue—should pro

ceed to determine whether Glacier has interfered with strike conduct that is protecte d by the NLRA, as alleged by the General Counsel.