Glacier Northwest, Inc. v. Teamsters

(Slip Opinion) OCTOBER TERM, 2022 1
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 agreement 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 trucks, and making deliveries. The
Union directed drivers to ignore Glacier’s instructions to finish deliv-
eries in progress. At least 16 drivers who had already set out for de-
liveries returned with fully loaded trucks. By initiating emergency
maneuvers to offload the concrete, Glacier prevented significant dam-
age to its trucks, but all the concrete mixed that day hardened and
became useless.
Glacier sued the Union for damages in state court, claiming that the
Union intentionally destroyed the company’s concrete and that this
conduct amounted to common-law conversion and trespass to chattels.
The Union moved to dismiss Glacier’s tort claims on the ground that
the National Labor Relations Act (NLRA) preempted them. While a
federal law generally preempts state law when the two 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 protects employees’ rights “to self-
organization, 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 company’s property during a labor
dispute. Pp. 6–12.
(a) The parties agree that the NLRA 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 concludes that the Union has not met its
burden as the party asserting preemption to demonstrate that the
NLRA arguably protects the drivers’ conduct. Longshoremen v. Davis,
476 U. S. 380, 395. Accepting the complaint’s allegations as true, the
Union did not take reasonable precautions to protect Glacier’s property
from imminent danger resulting from the drivers’ sudden cessation of
work. The 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 Glacier was in the midst of batching
large quantities of concrete and delivering it to customers. 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 executed the strike in
a manner designed to achieve those results. 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 whether the strike exceeded the lim-
its of conduct protected by the statute.
Cite as: 598 U. S. ____ (2023) 3
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 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.
Third, the Court acknowledges 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 property 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.
BARRETT, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. THOMAS, J.,
filed an opinion concurring in the judgment, in which GORSUCH, J.,
joined. ALITO, J., filed an opinion concurring in the judgment, in which
THOMAS and GORSUCH, JJ., joined. JACKSON, J., filed a dissenting opin-
ion.
Cite as: 598 U. S. ____ (2023) 1
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]
JUSTICE BARRETT delivered the opinion of the Court.
Glacier Northwest, a concrete company, depends on its
truck drivers to deliver concrete to customers in a timely
manner. But when relations between Glacier and its 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 interfering 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 labor dispute goes directly to a
court—raising the specter that state law will say one thing
about the conduct underlying the dispute while the NLRA
says another. It is a bedrock rule, of course, that federal
law preempts state law when the two conflict. U. S. Const.,
Art. VI, cl. 2. Preemption under the NLRA is unusual,
though, because our precedent maintains that the NLRA
Cite as: 598 U. S. ____ (2023) 3
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 the NLRA arguably protects or
prohibits conduct. Ibid. “[A] party asserting pre-emption
must advance an interpretation of the [NLRA] that is not
plainly contrary to its language and that has not been ‘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 situations
4 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, aggregate, admixture, and
water—in a hopper, it transfers the resulting concrete to
one of its trucks for prompt delivery.
In this business, time is of the essence. Concrete is highly
perishable—it begins to harden immediately once at rest.
Ready-mix trucks can preserve concrete in a rotating drum
located on the back of the truck, but only for a limited time.
If concrete remains in the rotating drum for too long, it will
harden and cause significant damage to the truck. Worse
still, the hardening begins right away if the drum stops 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 collective-
bargaining 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 Union’s conduct, we need not ad-
dress these exceptions.
Cite as: 598 U. S. ____ (2023) 5
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 environmentally 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 common-
law conversion and trespass to chattels.
6 GLACIER NORTHWEST, INC. v. TEAMSTERS
Opinion of the Court
The Union moved to dismiss Glacier’s tort claims on the
ground that the NLRA preempted them. In the Union’s
view, the NLRA at least arguably protected the drivers’ 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 property during a labor dispute.
598 U. S. ___ (2022).
II
As the party asserting preemption, the Union bears the
burden of (1) advancing “an interpretation of the [NLRA]
that is not plainly contrary to its language and that has not
been ‘authoritatively rejected’ by the courts or the Board,”
and then (2) putting forth “enough evidence to enable the
court to find that” the NLRA arguably protects the drivers’
conduct. Davis, 476 U. S., at 395. The Union passes the
first test but fails the second.
All agree that the NLRA protects the right to strike but
that this right is not absolute. Brief for Petitioner 18; Brief
for Respondent 21, 46, n. 14. The Board has long taken the
position—which both the Union and Glacier accept—that
the NLRA does not shield strikers who fail to take “reason-
able precautions” to protect their employer’s property from
foreseeable, aggravated, and imminent danger due to the
sudden cessation of work. Bethany Medical Center, 328
N. L. R. B. 1094 (1999) (“concerted activity” is “indefensible
Cite as: 598 U. S. ____ (2023) 7
Opinion of the Court
where employees fail to take reasonable precautions to pro-
tect the employer’s plant, equipment, 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 foreseeable and imminent danger.
The Union knew that concrete is highly perishable and that
it can last for only a limited time in a delivery truck’s 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 motions 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 Glacier’s trucks were full of wet
concrete—say, by instructing drivers to refuse to load their
trucks in the first place. Once the strike was underway,
nine of the Union’s drivers abandoned their fully loaded
trucks without telling anyone—which left the trucks on a
path to destruction unless Glacier saw them in time to un-
load the concrete. Yet the Union 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 Glacier’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 Glacier’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 resulted 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 emphasizes
Cite as: 598 U. S. ____ (2023) 9
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 commencing a work stoppage at
a time when the loss of perishable products is foreseeable.”
Brief for Respondent 22. It points out that the Board has
found strikers’ conduct protected even when their decision
not to work created a risk that perishable goods would spoil.
See, e.g., Lumbee Farms Coop., 285 N. L. R. B. 497 (1987)
(raw poultry processing workers), enf ’d, 850 F. 2d 689 (CA4
1988); Central Oklahoma Milk Producers Assoc., 125
N. L. R. B. 419 (1959) (milk-truck drivers), enf ’d, 285 F. 2d
495 (CA10 1960); Leprino Cheese Co., 170 N. L. R. B. 601
(1968) (cheese factory employees), enf ’d, 424 F. 2d 184(CA10 1970). If the mere risk of spoilage is enough to ren-
der a strike illegal, the Union insists, then workers who
deal with perishable goods will have no meaningful right to
strike.
The Union is swinging at a straw man. It casts this case
as one involving nothing more than a foreseeable risk that
10 GLACIER NORTHWEST, INC. v. TEAMSTERS
Opinion of the Court
the employer’s perishable products would spoil. But given
the lifespan of wet concrete, Glacier could not batch it until
a truck was ready to take it. So by reporting for duty and
pretending as if they would deliver the concrete, the drivers
prompted the creation of the perishable product. Then, they
waited to walk off the job until the concrete was mixed and
poured in the trucks. In so doing, they not only destroyed
the concrete but also put Glacier’s trucks in harm’s way.
This case therefore involves much more than “a work 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 strikes to minimize economic
harm to their employer, see Lumbee Farms, 285 N. L. R. B.,
at 506, and that the NLRA does not impose a legal 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 considerations 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 into 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.
Cite as: 598 U. S. ____ (2023) 11
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 allegations do not support the Un-
ion’s assertion that all of the drivers left the drums rotating.
The Union relies on a vague remark 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 practices in relation to its labor dis-
pute with the drivers, including by disciplining some of those involved in
the strike. The lower courts have not addressed the significance, if any,
of the Board’s complaint with respect to Garmon preemption. We will
not do so in the first instance. Cutter v. Wilkinson, 544 U. S. 709, 718,
n. 7 (2005) (“[W]e are a court of review, not of first view”). The Board’s
general counsel agrees that this issue is not properly before us. See Brief
for United States as Amicus Curiae 28.
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 offload concrete “in
a timely manner to avoid costly damage to [its] mixer
trucks.” App. 72. The Union’s actions not only resulted in
the destruction of all the concrete Glacier had prepared that
day; they also posed a risk of foreseeable, aggravated, and
imminent harm to Glacier’s trucks. Because the Union took
affirmative steps to endanger Glacier’s property rather
than reasonable precautions to mitigate that risk, the
NLRA does not arguably protect its conduct. We reverse
the judgment of the Washington Supreme Court and re-
mand the case for further proceedings not inconsistent with
this opinion.
It is so ordered.
Cite as: 598 U. S. ____ (2023) 1
THOMAS, 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]
JUSTICE THOMAS, with whom JUSTICE GORSUCH 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 conclusion, 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 JUSTICE
ALITO’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 courts 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 Court
2 GLACIER NORTHWEST, INC. v. TEAMSTERS
THOMAS, J., concurring in judgment
determined that, “[w]hen an activity is arguably subject to
§7 or §8 of the Act” (which, respectively, 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 jurisdiction, 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 the 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 feeling 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., at243–244.
Cite as: 598 U. S. ____ (2023) 3
THOMAS, 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 wrongful 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 state-
court jurisdiction unless the Board determines that the dis-
puted conduct is neither protected 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 federal 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-court 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 law
4 GLACIER NORTHWEST, INC. v. TEAMSTERS
THOMAS, 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) (THOMAS, J., concurring) (slip op., at 2); see
also PLIVA, Inc. v. Mensing, 564 U. S. 604, 617–618 (2011).
Cite as: 598 U. S. ____ (2023) 1
ALITO,AJ., , J., concurring
concurring
LITO 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]
JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE GORSUCH 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 seizure 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 employees 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 been
2 GLACIER NORTHWEST, INC. v. TEAMSTERS
ALITO, 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 tortious 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 destroyed.” 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 address the argument on which JUSTICE
JACKSON 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, the decision, in my judgment, would be
a good candidate for a quick return trip here.
Cite as: 598 U. S. ____ (2023) 1
JACKSON, 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]
JUSTICE JACKSON, 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 develop 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 that
2 GLACIER NORTHWEST, INC. v. TEAMSTERS
JACKSON, 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 intended for the Board to ad-
dress after an investigation. And in the course of inappro-
priately weighing in on the merits 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 contentious, 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.
Cite as: 598 U. S. ____ (2023) 3
JACKSON, 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 recognized 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 bargain 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 enforced
4 GLACIER NORTHWEST, INC. v. TEAMSTERS
JACKSON, 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 file 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).
Cite as: 598 U. S. ____ (2023) 5
JACKSON, 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 procedures, 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 result 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 constitute 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. Moreover, 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 not 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 these
6 GLACIER NORTHWEST, INC. v. TEAMSTERS
JACKSON, 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 to
strike—“arguably” protects the conduct at issue in a state-
court 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 conduct 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 plainly contrary to its language and
that has not been ‘authoritatively 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 courts 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 judicial 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-law
Cite as: 598 U. S. ____ (2023) 7
JACKSON, 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) represents Glacier’s concrete-
delivery 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 engaging 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 constituted additional unlawful
retaliation.
——————
1 JUSTICE THOMAS 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 the 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
JACKSON, 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 protected by the NLRA. Glac-
ier sought, and we granted, certiorari to review that deci-
sion. Notably, however, after 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 complaint represents the General Coun-
sel’s conclusion—reached after an extensive independent
investigation involving collecting testimony and other evi-
dence, and after careful consideration 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 is
Cite as: 598 U. S. ____ (2023) 9
JACKSON, 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 ultimately disagree with the factual or
legal basis of that pleading. But the complaint is surely sufficient to es-
tablish arguable protection, such that a court should stay its hand.
10 GLACIER NORTHWEST, INC. v. TEAMSTERS
JACKSON, 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 case. As the ALJ explained, the
General Counsel’s pleading “constituted a determination
that the strikers’ conduct was 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 the exclusivity of [the Board’s]
jurisdiction is obviously greatest when the precise issue
brought before a court is in the 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 courts 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.
Cite as: 598 U. S. ____ (2023) 11
JACKSON, 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 lower 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 remanded
12 GLACIER NORTHWEST, INC. v. TEAMSTERS
JACKSON, J., dissenting
with directions to stay proceedings or dismiss Glacier’s com-
plaint without prejudice, on the straightforward ground
that the General Counsel’s complaint 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 applying a series of fact-intensive
Board decisions to the bare allegations in Glacier’s state-
court 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 benefit of developed facts and labor
law expertise) reflects an analytical approach to the issues
presented that cannot be squared with Garmon.
A
Whether the NLRA protects particular 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 unprotected might well depend on
——————
4 The Washington Supreme Court affirmed the dismissal of Glacier’s
claims. Because only a pause of the state-court litigation is necessary
under Garmon, the proper disposition is either a stay of proceedings or
dismissal without prejudice.
Cite as: 598 U. S. ____ (2023) 13
JACKSON, 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 arguably-
protected 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 the
14 GLACIER NORTHWEST, INC. v. TEAMSTERS
JACKSON, 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 interpretation 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 fact-
finding role or to usurp the authority that Congress has
given the Board to make the initial underlying protected-
or-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 law 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 the 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 conducted
Cite as: 598 U. S. ____ (2023) 15
JACKSON, J., dissenting
that might ultimately favor the union, such that the lawsuit
should pause to allow the Board to gather the facts and ap-
ply its expertise to determine whether the strike was law-
ful.
B
The majority seems to misunderstand all this in the con-
text of this case. It correctly concludes that the Union has
carried its burden of “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.” 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 reasonable-
precautions 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 Congress intentionally assigned
16 GLACIER NORTHWEST, INC. v. TEAMSTERS
JACKSON, 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 Board decide the question. To
conclude no, given the fact-bound nature of the reasonable-
precautions analysis, a court in all but the most exceptional
circumstances will need to be able to point to a reasonable-
precautions 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 the guise of weighing the sufficiency
of the evidence.” Longshoremen v. Davis, 476 U. S. 380, 404 (1986) (opin-
ion concurring in part and dissenting in part) (expressing the concern
that a future court might misunderstand 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.
Cite as: 598 U. S. ____ (2023) 17
JACKSON, J., dissenting
to generate conflicting results about the contours of the ven-
erated right to strike, which, ironically, was the primary
concern that motivated Congress 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 concerted 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, Congress 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 wield
18 GLACIER NORTHWEST, INC. v. TEAMSTERS
JACKSON, 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 subchapter, except as specifically pro-
vided for herein, shall be construed 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 three
Cite as: 598 U. S. ____ (2023) 19
JACKSON, 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, imminent, 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
JACKSON, 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 employer’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-
Cite as: 598 U. S. ____ (2023) 21
JACKSON, 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 occurred 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 indisputable that workers have a statutory
right to strike despite the fact that exercising that right
risks economic harm to employers. Congress has, in effect,
drawn a line between those economic 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 affirmative 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 sudden
22 GLACIER NORTHWEST, INC. v. TEAMSTERS
JACKSON, J., dissenting
cessation of work risks foreseeable, imminent, and aggra-
vated harm to persons, premises, or equipment. Beyond
this narrow reasonable-precautions 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 orchestrated. 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 not be sufficient to divest the
striking drivers of statutory 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 their
Cite as: 598 U. S. ____ (2023) 23
JACKSON, 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 relatively 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 concrete 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 JUSTICE ALITO, 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, affirmative steps of violence or property
seizure, which is unprotected. To be sure, Fansteel would have rendered
the drivers’ actions here patently unprotected 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
JACKSON, 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 to
Glacier’s yard after the strike began and to keep the ready-
mix 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’s
reasonable-precautions precedents is, at bottom, a line-
drawing 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 the
Cite as: 598 U. S. ____ (2023) 25
JACKSON, 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 aggravated
or even untoward about that conduct. Glacier is a concrete-
delivery 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 this motion-to-dismiss stage in any fu-
ture proceedings on this matter in state court.
26 GLACIER NORTHWEST, INC. v. TEAMSTERS
JACKSON, 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 Union 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 here 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 reasonable-precautions principle.
In my view, doing that places a significant burden on the
employees’ exercise of their statutory 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 concrete, 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 termination or modification of the collective-
bargaining agreement, §158(d), and because negotiations had broken
down.
Cite as: 598 U. S. ____ (2023) 27
JACKSON, 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 majority’s errors. On remand,
the state court should dismiss Glacier’s complaint without
prejudice or stay its proceedings 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 protected by the NLRA, as alleged by
the General Counsel.