Jackson, J., dissenting
job.[1]
Where I disagree with the majority is the conclusion it draws from the fact that the batched concrete also risked harm to the drivers’ trucks, at least as alleged in Glacier’s complaint. The majority repeatedly ties the loss of the concrete—in particular, the risk that it would harden in the trucks—to the alleged risk of harm to the delivery trucks themselves.[2] But, to me, the alleged risk of harm to Glacier’s trucks involves a relatively complex factual analysis under the Board’s reasonable-precautions principle.
Glacier alleges that, “[o]nce at rest, concrete begins hardening immediately, and depending on the mix can begin to set within 20 to 30 minutes.” Id., at 8. Its complaint also asserts that “[i]f batched concrete remains in the revolving drum of the ready-mix truck beyond its useful life span, the batched concrete is certain or substantially certain to
- ↑ Justice Alito, relying on the rule from NLRB v. Fansteel Metallurgical Corp., 306 U. S. 240 (1939), gleans more from the loss of concrete than either the majority or I do. He concludes that the NLRA’s right to strike does not protect the drivers’ alleged conduct because Glacier has alleged that the drivers purposefully caused the batched concrete to be destroyed. In my view, that approach fails to appreciate the distinction Fansteel drew between purposefully but peacefully stopping work (and the economic consequences that flow from that decision), which is protected, and taking subsequent, affirmative steps of violence or property seizure, which is unprotected. To be sure, Fansteel would have rendered the drivers’ actions here patently unprotected if they had taken the affirmative steps of stealing the trucks, slashing the trucks’ tires, or dumping out the concrete after they went on strike. But nothing like that is alleged in Glacier’s complaint.
- ↑ See, e.g., ante, at 8 (“[T]he Union executed the strike in a manner designed to compromise the safety of Glacier’s trucks and destroy its concrete”); ante, at 10 (“[The drivers] not only destroyed the concrete but also put Glacier’s trucks in harm’s way. This case therefore involves much more than ‘a work stoppage at a time when the loss of perishable products is foreseeable’ ”); ante, at 12 (“The Union’s actions not only resulted in the destruction of all the concrete Glacier had prepared that day; they also posed a risk of foreseeable, aggravated, and imminent harm to Glacier’s trucks”).
