In August 2017, truck driver members of IBT Local Union No. 174 working for Glacier Northwest, Inc., a ready-mix concrete supplier, went on strike. The drivers returned their trucks and remaining concrete to company premises. Glacier offloaded this concrete into its yard and bunkers, where it hardened and was disposed of. In December 2017, Glacier sued

the Union for damages, claiming that by going on strike, the Union “sabotag[ed], ruin[ed], and destroy[ed]” its concrete.

The King County Superior Court granted the Union’s motion to dismiss Glacier’s claims.  Glacier then appealed to the Washington Court of Appeals, which reversed the lower court’s decision on the property destruction claims. The Washington Supreme Court ultimately reinstated the trial court’s dismissal, explaining that the claims were subject to Garmon preemption, which preempts state law claims over conduct protected or arguably protected by the National Labor Relations Act (NLRA).

In May 2022, Glacier sought review at the U.S. Supreme Court, which agreed to hear the case.  Glacier argued in part that the Washington Supreme Court should be reversed due to the principle of constitutional avoidance, claiming that preemption of its tort claims puts the NLRA “on a collision course with the Takings Clause.”

On December 8, 2022, CAC filed an amicus curiae brief in support of the Union. Our brief made two main points.

First, our brief argued that the text and history of the Takings Clause of the Fifth Amendment, which states that “private property [shall not] be taken for public use,” demonstrate that at the Founding the Clause was understood to apply only to the direct appropriation of property. And while the Clause has been subsequently interpreted to cover additional forms of government action, the Supreme Court has taken care to limit its application to regulations that are tantamount to direct appropriations of property.

Second, our brief explained that under Supreme Court precedent, federal strike protections and associated preemption of state law tort claims do not effect a taking. Regulations may be considered takings per se only when they permit a physical appropriation of property or deprive real property of all economic value. In this case, Glacier’s property was not physically appropriated, as the Union returned the concrete and Glacier maintained the ability to possess, use, and dispose of its property. Furthermore, none of Glacier’s real property was deprived of its total value. And even assuming that per se total takings of personal property can occur, one did not occur in this case because the NLRA regulatory scheme does not force employers to “leave [their] property economically idle.” In other words, Glacier’s argument that strike protections effect a taking is inconsistent with Supreme Court precedent.

In sum, the text and history of the Takings Clause demonstrate that it was designed to apply only to actual physical appropriations of private property. The NLRA’s protection of employees’ right to strike did not fit within the narrow definition of a taking established by the text and history of the Clause or the slightly more expansive definition of the Clause that exists under Supreme Court precedent.

On June 1, 2023, the Supreme Court issued its decision, reversing the ruling of the Washington Supreme Court. Without addressing the Takings Clause, the Court concluded that the NLRA does not arguably protect the alleged conduct of the Union because Glacier’s allegations, taken as true, show that the Union “failed to take reasonable precautions to avoid foreseeable, aggravated, and imminent harm” to the company’s trucks.