We frequently confront the issue of whether to institute tort-based suits in state or federal court, on behalf of an employer, seeking to recover damages suffered as a result of picketing, strikes, and other activities by labor unions. Currently, that issue sits before the U.S. Supreme Court in Glacier Northwest Inc. v. Teamsters Local 174, 198 Wash.2d 768 (2021), cert. granted, 143 S.Ct. 82 (2022) (No. 21-1449, 2022-2023 Term). There, the employer sought to recover damages for the destruction of its property during a strike in Washington state court. The union-defendant and State of Washington, in essence, argues that such claims are preempted under the long established Garmon preemption doctrine holding that the National Labor Relations Board (NLRB) should first evaluate whether the National Labor Relations Act (NLRA) protected the strike conduct.1

Under Garmon, when the activity at issue is arguably protected or prohibited by the NLRA, the case must be adjudicated by the NLRB. Therefore, if the controversy could have been presented to the NLRB, neither federal nor state court can have jurisdiction over the case, which necessarily prohibits employers from seeking remedies through tort-based suits in state or federal court.

There is, however, an important exception to Garmon preemption, which must be addressed by the Supreme Court in Glacier Northwest. When the claims made in the tort action, “implicate interests so deeply rooted in local feeling and responsibility” a federal or a state court may deny preemption and assert jurisdiction in the case.

Thus, when confronted with the question of whether tort action is appropriate in cases involving damages resulting from labor disputes and/or union activities, a detailed analysis of the facts that caused the damages must be undertaken in order to determine if the activities at issue were arguably protected or prohibited by the NLRA. Even if they were, litigators must determine whether the “deeply rooted” exception to the Garmon preemption doctrine may apply before determining the appropriate venue to recover their respective damages.