Page:Glacier Northwest v. Teamsters.pdf/9

6 The Union moved to dismiss Glacier’s tort claims on the ground that the NLRA preempted them. In the Union’s view, the NLRA at least arguably protected the drivers’ conduct, so the State was powerless to hold the Union accountable for any of the strike’s consequences.

The trial court agreed with the Union. After the appellate court reversed, the Washington Supreme Court reinstated the trial court’s decision. In its view, “the NLRA preempts Glacier’s tort claims related to the loss of its concrete product because that loss was incidental to a strike arguably protected by federal law.” 198 Wash. 2d 768, 774, 500 P. 3d 119, 123 (2021).

We granted certiorari to resolve whether the NLRA preempts Glacier’s tort claims alleging that the Union intentionally destroyed its property during a labor dispute. 598 U. S. ___ (2022).

As the party asserting preemption, the Union bears the burden of (1) advancing “an interpretation of the [NLRA] that is not plainly contrary to its language and that has not been ‘authoritatively rejected’ by the courts or the Board,” and then (2) putting forth “enough evidence to enable the court to find that” the NLRA arguably protects the drivers’ conduct. Davis, 476 U. S., at 395. The Union passes the first test but fails the second.

All agree that the NLRA protects the right to strike but that this right is not absolute. Brief for Petitioner 18; Brief for Respondent 21, 46, n. 14. The Board has long taken the position—which both the Union and Glacier accept—that the NLRA does not shield strikers who fail to take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work. Bethany Medical Center, 328 N. L. R. B. 1094 (1999) (“concerted activity” is “indefensible