CalPortland asks the Supreme Court to draw a line on union recklessness

The U.S. Supreme Court is set to hear arguments this term involving one of the West Coast’s top cement, aggregate and ready mixed concrete players (note Government Affairs, page 11). CalPortland Co. counsel will demonstrate why justices should reverse a Washington State Supreme Court decision shielding International Brotherhood of Teamsters Local 174 from liability in a 2017 Seattle plant stunt whose lost material and idled-labor costs ran into the five figures. 

Local 174 officers prompted a work stoppage among mixer truck driver bargaining unit members as a CalPortland/Glacier Northwest plant approached peak loading and delivery. Staff not participating in the union action had to unload 16 mixer drums and contain fresh concrete in a temporary plant area without compromising the environment. 

After four years of county and state court proceedings, the Washington Supreme Court determined that National Labor Relations Act (NLRA) provisions preempted CalPortland’s pursuit of relief from Local 174. The U.S. Supreme Court examined those provisions in a 1959 case, San Diego Building Trades Council v. Garmon, underpinning the Washington Supreme Court CalPortland decision. In Garmon, a building materials retailer sought damages in California state court tied to disruptive picketing. Justices determined that the NLRA, owing to its “protected activity” clause, trumps state laws under which a party with a claim like Garmon’s could seek damages.

Ramifications of the Glacier Northwest, Inc., d/b/a CalPortland v. International Brotherhood of Teamsters Local Union No. 174 petition, filed with the Supreme Court in early November, compelled an amicus brief filing by the Associated Builders & Contractors-backed Coalition for a Democratic Workplace (CDW), whose members include the National Precast Concrete Association, National Ready Mixed Concrete Association and Portland Cement Association. CDW notes that in Garmon, the High Court held that the NLRA ordinarily preempts state efforts to regulate activity protected under Section 7, prohibited under Section 8, or “arguably” protected or prohibited under those sections. Supreme Court precedents, Coalition counsel contends, “Unmistakably establish that the NLRA does not immunize unions that intentionally destroy their employer’s property by preempting state tort suits seeking to hold unions liable for unlawful actions.”

The CDW brief also quotes a 2021 High Court decision highlighting legal fundamentals at state and federal levels: “’The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom.’ State law is the primary way that our system promotes this freedom by ‘protecting society as a whole from physical harm to a person or property.’”

CDW counsel weighs future labor relations if the Supreme Court fails to reverse the Washington Supreme Court CalPortland-Local 174 decision, noting “The financial, logistical, and reputational harms that attend the destruction of property at the hands of employees who know the lynchpins of a business can be incalculable. Even the mere threat of destruction of property will be enough to fundamentally alter the bargaining positions between labor and management.”

Another amicus brief was filed by the National Right to Work Legal Defense Foundation Inc., whose mission includes “protecting employees from threats, coercion, violence, and economic loss caused by labor unions holding monopoly bargaining power.” In addition to that power, Foundation counsel lists other special privileges organized labor officials or groups enjoy: Immunity from criminal penalties in many instances of threats and violence, and exemption from antitrust laws provided actions are in “self-interest and not combine[d] with non-labor groups.” The CalPortland decision, Foundation attorneys add, shows the Washington Supreme Court excusing Local 174’s actions and refusing to call them out as “a conspiracy to commit vandalism.”

Business groups see a lot riding on the Supreme Court’s response to the CalPortland petition and oral arguments. The justices will hopefully find cause to remind labor unions of the circumstances where state laws protecting people and property remain beyond NLRA preemption.