On Tuesday, the U.S. Supreme Court will hear oral arguments in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local No. 174. If you’ve been following the news on the case, you could be forgiven for thinking that the Court may be about to abolish the right to strike. But in fact, the case involves a narrow issue of federal preemption. Briefly stated, the question is whether an employer can sue a union for intentionally destroying its property during a labor dispute. And while that question is important, it hardly represents an existential threat to unions or strike rights. It’s more about preserving the status quo.

The heart of the case is preemption doctrine under the National Labor Relations Act (NLRA). Though the NLRA says nothing about preemption, courts have interpreted it to have one of the broadest preemptive scopes in federal jurisprudence. The reason comes from history. In the early twentieth century, labor disputes and work stoppages were much more common than they are today. They were also much more disruptive. They often ballooned to envelop whole industries and were marred with violence. For example, during the infamous Pullman Railroad Strike, interstate rail shipments were shut down for months, and as many as thirty strikers were killed by federal troops. Other strikes caused similar chaos.  

The NLRA was meant to calm the situation. Instead of leaving employers and unions to resort to self-help, it pulled them into a nationwide regulatory regime. That regime encouraged them to resolve their differences through collective bargaining. And it funneled their complaints through a new federal agency, the National Labor Relations Board. The Board, not courts, was supposed to craft and enforce labor policy for the whole country.

Given that design, courts reasoned that Congress must have wanted to prevent states from contradicting the Board with different local rules. So they cast a wide preemptive net. In particular, they barred states from regulating any conduct “arguably” protected by federal law. And they forbade states from offering new or additional remedies for conduct “arguably” forbidden.

That rule, however, has never been absolute. Multiple exceptions have developed, two of which are particularly relevant here. First, if a party engages in conduct falling outside the NLRA, states remain free to regulate or punish that conduct. Second, even if the conduct falls within the NLRA, states can regulate it when it is (a) “tangential” to the federal regime, or (b) touches on an interest “deeply rooted in local feeling and responsibility.”

That “local feeling” exception plays a starring role in Glacier. The case started with a surprise strike. The petitioner, Glacier Northwest, manufactures and delivers ready-mix concrete. The concrete hardens within a few minutes if not continually mixed. It must also be poured on the same day. So to keep it primed as long as possible, Glacier delivers it in special mixing trucks.

The company’s truck drivers are represented by a local chapter of the Teamsters. In August 2017, the drivers’ contract with Glacier expired with no new deal. So to pressure Glacier, the Teamsters called a surprise strike. Early in the morning, they signaled the strike to the drivers, who walked off the job. Some of the drivers had fully loaded trucks, which they left unwashed and undelivered. And with no ready replacement drivers, the company couldn’t deliver the loads. Instead, it had to dump the loads in special depots and discard the hardened concrete.

Glacier responded by suing the union. It alleged that the union timed the strike to intentionally destroy the company’s property (i.e., the concrete). State courts, however, threw the suit out. They reasoned that the strike was arguably protected by the NLRA, so it fell within statute’s broad preemptive net. They also concluded that the “local feeling” exception didn’t apply. They recognized that the exception has often been used to allow intentional-tort suits. But even so, they reasoned that intentional torts fell under the exception only when they were accompanied by violence or “outrageous conduct.” Suits for incidental destruction—i.e., destruction occurring simply because the workers walked off the job—wasn’t extreme enough to qualify.

So far, the dispute may sound like a picayune point of doctrine. So it was a bit of a surprise when the Supreme Court agreed to take the case. Looking for an explanation, media outlets rushed to the extremes. They announced that the Court was about to “kneecap” the right to strike. They claimed the Court was planning to twist preemption doctrine to undermine unions. They even speculated that the Court would allow employers to sue unions for any loss resulting from a strike. That kind of financial liability, they warned, would effectively end strikes and destroy union power.

But that reporting overshot reality. In fact, the Court granted cert on a narrow question: whether the NLRA preempts a claim under state law for intentional destruction of property. The “intentional” part is important. The case is not about economic loss generally. It’s not about lost orders, inconvenience, or spoiled goods. Instead, it’s about only intentional and willful destruction. It presents a simple, clean issue: does federal law preempt property-destruction suits simply because they’re connected with a strike?

And unusually for a Supreme Court case, the answer is relatively clear—at least according to the Court’s own caselaw. Since the 1930s, the Court has held that intentional property destruction falls outside the NLRA’s protection. And since at least the 1970s, it has held that property-related torts also qualify for the “local feeling” exception. Like other intentional torts, property-related torts implicate deep-seated local interests. So it would be inappropriate to preempt them, even when they involve arguably protected conduct.

In Glacier, the state courts put their own gloss on that precedent. They required the company to produce additional evidence—either of violence or “outrageous conduct.” But that gloss wasn’t only new; it also clashed with the Court’s prior decisions. In the past, the Court has allowed property claims to go forward even when the underlying dispute was peaceful. For example, in Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, a union set up a picket line on the employer’s property. The employer then sued for trespass. And even though the picketing was peaceful—and arguably protected by federal law—the Court allowed the suit. It recognized that while the federal government has an interest in maintaining a uniform labor policy, that interest sometimes has to give way to a state’s more immediate interest in protecting private property.

That point probably explains the Court’s decision to grant cert. Hyperbolic reporting aside, the Court probably didn’t take the case to advance some secret anti-union agenda. Instead, it took the case to correct a misreading of its precedent. That precedent does not require plaintiffs to offer evidence of violence or outrageous conduct. It requires only that they show the defendant committed misconduct (a) outside the protection of federal law, or (b) so closely related to local interests that preemption would be inappropriate. Intentional property destruction has always met those criteria. And in Glacier, the Court is likely to reiterate that point.

 

If that’s the right way to read Glacier, the case means far less than the reporting suggests. But it could still be important. If nothing else, the proceedings below show that some courts are still confused about the outer edges of NLRA preemption. So the Court could use the case to update and clarify the rules. In particular, it could offer a clear statement about property rights during a strike. While unions have the right to call a strike, they have no right to destroy the employer’s property. And if they do destroy property, they can be sued just like anyone else. The NLRA does not, and never has, immunized vandalism.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].