*Special thanks to Porter Wright summer law clerk, Diego De La Vega, for his assistance with this post.

On June 1, 2023, the Supreme Court of the United States issued a decision some have deemed a blow to the right to strike. An 8-1 decision, Glacier Northwest v. International Brotherhood of Teamsters Local Union No. 174 crossed ideological lines, as both conservative and liberal members of the Supreme Court either joined the majority opinion or concurred.

The strike

In August 2017, the collective bargaining agreement between Glacier and its drivers, represented by Teamsters, was set to expire. As negotiations over the parties’ new contract stalled, the union planned a strike: the drivers showed up to work, had concrete prepared and poured into their ready-mix trucks, and then walked off the job. Drivers who had already begun their route for the day returned to the facility and abandoned their trucks.

The litigation

Later that year, Glacier brought suit against the union in Washington state court to recover for damages resulting from the strike, and the case eventually made its way to the Washington Supreme Court. That court held it could not hear a state tort claim until the National Labor Relations Board (NLRB) weighed in on whether the drivers’ actions were protected under the National Labor Relations Act (NLRA). Glacier then appealed that decision to the U.S. Supreme Court on the grounds that the conduct was not arguably protected by the NLRA.

Arguably protected?

Under the NLRA, and NLRB and Supreme Court precedent, a party claiming that state court is an inappropriate forum for the dispute must show their interpretation of the NLRA is not plainly contrary to the NLRA’s language and that their interpretation has not previously been rejected by the NLRB or courts. Next, that party must offer evidence which would allow the court to find the NLRA “arguably protects” the conduct underlying the lawsuit. This is a lower threshold; a litigant need only prove the NLRB might rule in their favor.

What the court said

Here, the Supreme Court held the union failed to meet its burden to show that the drivers’ conduct during the strike was arguably protected by the NLRA. In other words, the union did not show the NLRB might rule in its favor. In its review, the Supreme Court looked at the drivers’ actions (reporting to work, prompting creation of perishable concrete and abandoning their trucks) in the context of past NLRB decisions finding that striking workers had an obligation to take reasonable precautions to protect the employer’s property from foreseeable, aggravated and imminent danger resulting from the strike. The Supreme Court found that, rather than taking reasonable precautions, the drivers executed their strike “in a manner designed to compromise the safety of Glacier’s trucks and destroy its concrete.” The Supreme Court outlined several hypotheticals which would have rendered the drivers’ conduct “arguably protected”: they could have refused to load their trucks, eliminating the danger of concrete setting in abandoned trucks, or the union could have alerted Glacier that all loaded trucks had been returned to Glacier property.

Implications moving forward

The Supreme Court’s decision does not eliminate or limit employees’ right to strike – nor did the Supreme Court find the union was liable for strike-related damages. Rather, this decision reaffirms the notion that, while employees’ strike activity is protected, they may be held liable for deliberate damages caused to their employer’s property. Glacier’s suit against the union can now resume in state court.

The Supreme Court’s decision appears to put unions on notice that they must strike in a manner that reduces the risk of foreseeable, imminent danger to an employer’s property. However, a few lines from Justice Jackson’s dissent may later prove powerful: decisions on these matters tend to be fact-based; their impact is limited to situations which bear incredible factual similarities to the case being decided. This decision may be a shot across the bow of organized labor, but its bipartisan nature signals it has support from both liberals and conservatives on the Supreme Court.