We often face the question of whether to file tort suits in state or federal court on behalf of an employer seeking to recover damages incurred as a result of picketing, strikes and other union activities. Currently, that matter is before the US Supreme Court Glacier Northwest Inc. v. Teamsters Local 174198 Wash.2d 768 (2021), certificate. granted, 143 S.Ct. 82 (2022) (n. 21-1449, term 2022-2023). There, the employer sought to recover damages for the destruction of his property during a strike in the Washington state court. The union and Washington State defendant, in essence, argues that such claims are preempted under the long-held Garmon preemption doctrine that the National Labor Relations Board (NLRB) should first consider whether the National Labor Relations Act (NLRA) protected the conduct strike.1
Under Garmonwhen the activity in question is arguably protected or prohibited by the NLRA, the case must be adjudicated by the NLRB. Therefore, if the dispute could have been filed with the NLRB, neither federal nor state courts can have jurisdiction over the case, which necessarily prohibits employers from seeking remedies through tort suits in state or federal courts.
There is, however, one important exception a Garmon preemption, which must be addressed by the Supreme Court in Northwest Glacier. When the claims made in the tort action “involve interests so deeply rooted in local sentiment and responsibility,” a federal or state court can deny preemption and assert jurisdiction in the case.
Therefore, faced with the question of the advisability of non-contractual action in cases of damages deriving from labor disputes and/or trade union activities, it is necessary to carry out an in-depth analysis of the facts which caused the damages in order to determine whether the activities matter were likely protected or prohibited by the NLRA. Even if they were, the litigants must determine whether the “deeply rooted” objection to the Garmon the doctrine of pre-emption can be applied before determining the appropriate forum to recover the respective damages.