Page:Glacier Northwest v. Teamsters.pdf/46

Rh majority’s conclusion that the risk to the trucks rendered the drivers’ strike unprotected by the NLRA. Instead, I would have credited Glacier’s own account, and thus would have concluded that the Union took reasonable precautions when it instructed the drivers to return the trucks and leave them running to avoid the concrete hardening imminently in the drums. The majority reaches the opposite conclusion by giving far too little weight to the allegation that the drivers returned the trucks, and also by substantially discounting the allegations that support the Union’s claim that the drivers left their trucks and revolving drums running. See.

Fortunately, the pending Board determination of what actually happened in connection with this particular strike will establish—as a matter of fact and not mere allegation—what precautions (if any) the drivers actually took and what harm (if any) the Union’s conduct actually posed to Glacier’s trucks. But our different takes on these allegations only underscore the potential for variable outcomes when courts apply the Board’s fact-dependent principles to bare assertions.

To the extent that the majority’s conclusion rests on the alleged fact that “by reporting for duty and pretending as if they would deliver the concrete, the drivers prompted the creation of the perishable product” that “put Glacier’s trucks in harm’s way,”, I see nothing aggravated or even untoward about that conduct. Glacier is a concrete-delivery company whose drivers are responsible for delivering wet concrete, so it is unremarkable that the drivers struck at a time when there was concrete in the trucks. While selling perishable products may be risky business, the perishable nature of Glacier’s concrete did not impose