With the conclusion of the 2022-2023 Supreme Court Session, and a recent National Labor Relations Board (“NLRB” or “Board”) decision, Labor and Employment law has been featured in two major holdings.
On June 1, the Supreme Court held in Glacier Northwest, Inc. v. International Brotherhood of Teamsters that an employer could sue a union for damages to property caused by a strike. The Court ruled that while the National Labor Relations Act (“Act”) grants the right to strike, it is not an absolute right, and thus, does not automatically override tort claims for the harm caused by a union’s choice to strike.
Glacier Northwest delivers concrete to consumers in Washington. The International Brotherhood of Teamsters Local Union No. 174, the union for the truck driver-employees of Glacier, called for a work stoppage while workers mixed substantial amounts of concrete and made deliveries. The result of this work stoppage was the hardening of mixed concrete, resulting in lost profits and damaged property. Additionally, there would have been substantial damage to the trucks if Glacier had not taken emergency measures to offload the concrete.
The Court held that the Act does not protect 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. The Court noted that the workers reported for duty as if they would deliver the concrete, which prompted the creation of the perishable concrete. The workers only ceased work once the concrete was mixed and poured into trucks. Because hardened concrete could not be delivered to customers and would damage the trucks, the Court found that the union took affirmative steps to endanger Glacier’s property rather than reasonable precautions to mitigate that risk.
Though the Act preempts state law when they arguably conflict, the Court held that since the Union’s conduct was not protected by the Act, Glacier’s tort claims were not preempted.
On June 13, the NLRB published an opinion which revisited the analysis to determine whether a worker is an independent contractor or an employee. In The Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, IATSE, the Board overruled SuperShuttle (2019), and reverted back to the standard set by FedEx II (2014), holding that the workers at issue are employees under Section 2(3) of the National Labor Relations Act (the “Act”).
The Board has long endorsed the factors articulated in Section 220 of the Restatement (Second) of Agency as the appropriate test for determining if a worker is an employee or an independent contractor. However, the Board has changed its position with respect to the importance of whether a worker has a “significant entrepreneurial opportunity for gain or loss.” In Atlanta Opera, the Court held that entrepreneurial activity is not the core of the common law test, and the presence or lack of entrepreneurial activity is not alone enough to establish a worker is an employee or independent contractor. Rather, the Board will “give full consideration and appropriate weight” to all of the common-law factors.
The Board held that, as part of this analysis, it will consider “whether the terms or conditions under which the individuals operate are ‘promulgated and changed unilaterally by the company.’”
In Atlanta Opera, the Board reviewed the following factors to hold that the workers were employees: (1) Extent of control by employer; (2) whether or not individual is engaged in a distinct occupation or business; (3) whether the work is usually done under the direction of the employer or by a specialist without supervision; (4) skill required in the occupation; (5) whether the employer or individual supplies instrumentalities, tools, and place of work; (6) length of time for which individual is employed; (7) method of payment; (8) whether or not work is part of the regular business of the employer; (9) whether or not the parties believe they are creating an independent-contractor relationship; (10) whether the principal is or is not in business; and (11) whether the evidence tends to show that the individual is, in fact, rendering services as an independent business.
