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Section 10

Building Worker Power in Cities & States:
Protecting Unions from Tort Liability and Civil RICO Suits

By CLJE Lab 09/01/2024

Background

While much of this toolkit focuses on how state and local legislation can empower workers, this section focuses on preventing abuses of state law that could undermine worker power. The Supreme Court’s 2023 decision in Glacier Northwest v. International Brotherhood of Teamsters appears to have had minimal effects on existing law.1 However, if the Court opens up tort law as a new frontier to harm unions in a future case, the proposals in this section could help minimize the damage. This section also proposes state-level reforms that could help unions defend against civil RICO suits, which are increasingly misused against labor organizing.

Objective of State Intervention: Protect Striking Workers from Tort Liability

Far from gutting labor law preemption, the Glacier Court appears to have made, at most, two small changes to existing law. The first is procedural and could increase the likelihood that employers who sue striking unions for property damage will survive initial motions to dismiss. Garmon preemption holds that an employer cannot sue over a strike that is even “arguably” protected by the NLRA until the National Labor Relations Board (NLRB) has ruled. However, Glacier ruled that when a union presents a Garmon preemption argument on a motion to dismiss, courts should only consider the facts alleged by the employer. This could delay dismissing cases like Glacier, where a union details the steps it took to avoid damaging employer property on preemption grounds.

The second potential change is substantive, as Glacier suggests that a narrow range of strike actions may be unprotected by the NLRA. Striking workers who take “reasonable precautions” to avoid damaging employer property are protected, even if the strike leads to loss of perishable products, such as milk that expires during a strike at a grocery store. But the Court implied that a strike in which workers “prompt” the creation of a perishable product, thereby risking aggravated damage to employer property, is not protected. This ill-defined “prompting” test could create additional liability for striking unions in specific factual contexts, but its applications remain unclear. The discussion of “prompting” also signals the Court’s willingness to wade into murky factual questions, typically left to the NLRB’s expertise.

Perspectives on Glacier NOrthwest v. Teamsters Local 174: Darin Dalmat

In Glacier Northwest v. Teamsters Local 174, Darin Dalmat, Senior Partner with Barnard, Iglitzin & Lavitt LLP, argued on behalf of the union before the Supreme Court.

In a three-part series in OnLabor, Dalmat shares his perspectives on the Court’s ruling and reflections on the past and future of Garmon preemption.

REad in Onlabor


While these developments may be modest, they could herald future changes from the anti-labor Court, making it important to define available tort claims against unions. Even in cases where the NLRB eventually intervenes and triggers preemption, the increased early-stage viability of employers’ claims could run up unions’ legal fees. Although tort law is a creature of state common law, it is not out of the ordinary for state legislatures to amend and refine the scope of tort liability.2 For example, states often pass statutes to limit the tort liability of physicians, product manufacturers, and Good Samaritans. States could do likewise by enacting statutes to limit the liability of striking unions.

Preemption Risk

State-level tort reforms aimed at protecting strikes may be vulnerable to challenge under Machinists preemption.3 States generally cannot regulate strikes, lockouts, or other forms of economic self-help by unions and employers. According to Machinists, Congress intended for the NLRA to be the only limitation on the “free play of economic forces” in the self-help arena. A state reform that specifically shields strike activity from tort liability may be struck down if a court interprets it as putting a thumb on the scale in favor of unions.4

Options for State or Local Action

States could stay property damage claims arising from a strike (such as the conversion and trespass to chattels claims in Glacier) until any ongoing NLRB litigation concerning the same strike is exhausted. Exhaustion requirements, which necessitate completing an administrative process before proceeding to court, are found in myriad settings, from employment discrimination to ERISA. Claimants must often exhaust state processes before proceeding to federal court; these reforms would require exhaustion of a federal process (an NLRB proceeding) before pursuing a claim in state court.

In the medical malpractice context, several states have passed laws requiring a “medical review panel” to screen plaintiffs’ claims before they can proceed to court. These panels have been struck down in some states and upheld in others, with the cases often hinging on issues including state constitutional provisions and the right to a jury trial.

I. Limiting Damages and Attorneys’ Fees for Strike-Related Property Damage

States could limit the damages and attorneys’ fees available for strike-based property damage claims. In 2023, Illinois passed an amendment to its Labor Dispute Act limiting damages awarded in cases involving unintentional property damage resulting from legal strike activity.5 However, past attempts to limit damages and fees (e.g., medical malpractice suits and noneconomic damages) have frequently been struck down on various grounds, including due process, the right to a jury trial, and equal protection. Narrowly tailored state reforms focused on strike-related suits would risk preemption, while broadly worded reforms could prevent deserving plaintiffs from being made whole in other settings.

Another strategy less vulnerable to preemption could involve limiting tort damages stemming from any protest activity protected by law, similar to how recent state-level captive audience bans have also prohibited forced meetings about politics and religion. These reforms could be framed as protecting “expressive conduct” in general, taking advantage of any state constitutional protections associated with the term. Another possibility is to limit liability stemming from any type of strike (e.g., debt strike, rent strike, or labor strike), thus avoiding the appearance of favoring labor relations specifically.

II. Denying a Cause of Action for Strike-Related Property Damage 

The employer in Glacier accused the union of “intentional property destruction,” which is not a traditional tort cause of action (its actual claims were for conversion and trespass to chattels). As two tort scholars observed in an amicus brief, intentional property destruction is the (entirely legal) goal of much economic competition between firms.6 Furthermore, the scholars argued, conversion and trespass to chattels are ill-suited to complex relationships like employment, where an employer willingly gives possession of goods to its employees under some circumstances but not others.

States could adopt the tort scholars’ view and clarify their tort definitions to exclude claims arising from relationships like employment, where possession of certain goods changes hands according to contract. Applying this reform broadly across multiple contexts — not just employment — would once again lower the risk of preemption.

III. Creating Judicial Presumptions That Favor Unions

Unions (not employers) are typically the parties accused of strike-related property damage, so a rebuttable presumption of non-intent in such cases could benefit unions without changing any party’s substantive rights or responsibilities, potentially dulling the threat of preemption. States could also adopt a rebuttable presumption that employers assume certain risks relevant to strikes, such as the spoilage of goods.

IV. Enabling Robust Motions to Dismiss

Some labor advocates think that unions may avoid retaliatory state tort suits through vigorous motions to dismiss for lack of jurisdiction. In Washington, a party filing a 12(b)(1) motion can attach “jurisdictional facts” showing why the case lacks jurisdiction. So, in a case like Glacier, a union could attach facts showing the reasonable precautions it took and any other grounds for “arguable” protection under the NLRA, invoking Garmon preemption. Allowing unions to attach jurisdictional facts could expedite the dismissal of frivolous anti-union suits quickly, and as a generally applicable reform to state civil procedure, poses little to no preemption risk.

Objective of State Intervention: Protect Unions from Civil RICO Suits

Title IX of the Organized Crime Control Act of 1970,7 otherwise known as the Racketeering Influenced and Corrupt Organizations (RICO) Act, bans racketeering activities by organizations and individuals as part of a broader national policy to combat organized crime. While legislators intended RICO to fulfill a rather narrow crime-fighting objective, the Act’s sweeping language has since led to a proliferation of RICO litigation against organizations well beyond the orbit of the mob.8 Labor organizations have become a major target of RICO, which not only establishes criminal penalties but also enables private litigants like employers to seek recovery of civil damages. These latter “civil RICO” suits prove especially threatening in the context of so-called “corporate” or “comprehensive” campaigns, where unions seek concessions from employers through disruptive activities like shareholder protests and client-directed actions.9 While employers often struggle to establish liability, the mere threat of treble damages and reputational injury posed by RICO lawsuits can have a chilling effect on organizing campaigns.10

The critical elements of a RICO violation are (1) investments in, acquisition of, control of, or conduct of (2) an enterprise (3) through a pattern of (4) racketeering activity.11 The first two elements are defined broadly by federal statute; an enterprise, for example, can include not only companies but also labor organizations, other legal entities, or other “groups of individuals associated in fact.”12 Meanwhile, a plaintiff need only present two related instances of racketeering activity over a 10-year period to establish a “pattern” — the third element — under the statute.13

In defining the final element, “racketeering activity,” Section 1961(1) of RICO provides a long list of so-called “predicate acts” that can form the basis of an actionable pattern under the law. Subdivisions B-G list 70 federal offenses, including bribery, embezzlement, Hobbs Act extortion, and wire fraud. Subdivision A includes “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, dealing in a controlled substance … chargeable under state law” (emphasis added) with a maximum punishment of one year or more in jail.14 Though Subdivision A does not list any specific statutory offense, courts have held that a state crime can constitute a predicate act under this subdivision if it falls under the “generic” definition of one of the referenced offenses and was outlawed when the defendant committed the act.15

While most civil RICO claims derive from a federal cause of action, state law often determines whether so-called “predicate acts” exist to support a claim against a union or other worker organization. In a few cases, state laws have allowed courts to apply RICO broadly over a wide array of union comprehensive campaign activities. In Smithfield Foods Inc. v. UFCW,16 agricultural mega-processor Smithfield filed a civil RICO action against UFCW Local 400 after the union embarked on a self-proclaimed “corporate campaign.” As in many comprehensive campaigns, the union undertook actions designed to undermine Smithfield’s public image, damage its relationship with clients and financial analysts, and impose legal and regulatory hurdles, all in the hopes of securing a pre-recognition agreement that would allow UFCW to more easily unionize Smithfield’s massive Tar Heel plant.17 

While most civil RICO claims derive from a federal cause of action, state law often determines whether so-called “predicate acts” exist to support a claim against a union or other worker organization. In a few cases, state laws have allowed courts to apply RICO broadly over a wide array of union comprehensive campaign activities. In Smithfield Foods Inc. v. UFCW,16 agricultural mega-processor Smithfield filed a civil RICO action against UFCW Local 400 after the union embarked on a self-proclaimed “corporate campaign.” As in many comprehensive campaigns, the union undertook actions designed to undermine Smithfield’s public image, damage its relationship with clients and financial analysts, and impose legal and regulatory hurdles, all in the hopes of securing a pre-recognition agreement that would allow UFCW to more easily unionize Smithfield’s massive Tar Heel plant.17 

Credit: Brooke Anderson / Flickr

Smithfield based its RICO claim on multiple predicate acts of extortion, derived not from the federal Hobbs Act but from Virginia and North Carolina state law.20 The district court granted the plaintiffs’ motion to dismiss multiple union defenses on the pleadings, noting that even statements that were truthful or made in an effort to influence public officials were not immune from either state’s extortion law, preserving the potential for RICO liability.21 While the Smithfield case ultimately settled favorably for the union, other employers could apply broad state extortion laws through RICO to suppress a wide array of worker organizing and speech in the future.22

States therefore can play an important role in protecting union organizing by either reforming state RICO statutes or limiting the potential predicate acts under state law that could support a RICO claim.

Preemption Risk

The preemption risk is likely low, but this is an untested area.

Options for State or Local Action

I. Amend State RICO and Predicate-Act Statutes

Most obviously, states could amend their own RICO laws to provide broad and express immunity for unions for predicate acts committed in furtherance of legitimate union objectives — much as federal lawmakers have proposed. While this would not address labor unions’ risk of federal liability, it would help to insulate them from prosecution by state officials and shield them from liability under state law.23

As mentioned, state laws prohibiting extortion, bribery, or other predicate acts listed under Subdivision A of Section 1961(1) can form the basis of a federal civil RICO claim. States could amend predicate-act statutes, such as existing extortion and blackmail laws, to clarify that the state extortion act shall reach no further than the federal Hobbs Act’s definition of extortion as interpreted by the U.S. Supreme Court in United States v. Enmons.24 Given that the Supreme Court has established that limiting extortion in this matter is compatible with federal labor law, the risk of preemption is low.

II. Create Defenses for Labor Organizing in Predicate-Act Statutes

State lawmakers could also protect worker organizing by mitigating the weaponization of state predicate-act laws under the federal RICO statute. Creating labor-organizing exemptions or defenses for these predicate state offenses could help insulate union organizing from federal RICO liability. However, exemptions tailored specifically toward unions could raise preemption risks. To reduce these risks, lawmakers could create broader exemptions, declaring that public speech — by anyone, not just a union — about corporate wrongdoing is not a crime under state law.


  1. 143 S. Ct. 1404 (2023). ↩︎
  2. Introduction to Tort Law, Congressional Report Service (May 26, 2023), https://crsreports.congress.gov/product/pdf/IF/IF11291. ↩︎
  3. Machinists v. Wis. Emp. Rel. Comm’n, 427 U.S. 132 (1976). ↩︎
  4. See Rum Creek Coal Sales, Inc. v. Caperton, 971 F.2d 1148 (4th Cir. 1992). ↩︎
  5. Ill. Pub. Act No. 103-0040 (2024), https://ilga.gov/legislation/publicacts/fulltext.asp?Name=103-0040. ↩︎
  6. Brief of Tort Scholars as Amici Curiae in Support of Respondent, Glacier Nw., Inc. v. Int’l Bhd. of Teamsters Loc. Union No. 174, 143 S. Ct. 1404 (2023) (No. 21-1449). ↩︎
  7. 18 U.S.C. § 1964(1). ↩︎
  8. James J. Brudney, Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns, 83 S. Cal. L. Rev. 731, 744-47 (2009) (outlining the original intent of RICO as expressed in the legislative history of the law). ↩︎
  9. See Paul Jarley & Cheryl L. Maranto, Union Corporate Campaigns: An Assessment, 43 Indus. & Lab. Rel. Rev. 505, 505-506 (1990). ↩︎
  10. See Tom Juravich & Kate Bronhenbrenner, Ravenswood: The Steelworkers’ Victory and the Revival of American Labor 86 (ILR Press1999); Extortion, Blackmail, Am. Jur. (2d). ↩︎
  11. See Sedima S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). ↩︎
  12. 18 U.S.C.§ 1964(1). ↩︎
  13.  Id. at § 1961(5). ↩︎
  14. Id. at § 1961(1)(A). ↩︎
  15. See, e.g., United States v. Kirsch, 903 F.3d 213, 225–26 (2d Cir. 2018) (extortion under New York statute satisfied generic definition); United States v. Ferriero, 866 F.3d 107, 115 (3d Cir. 2017) (bribery under New Jersey statute was generic); United States v. Adams, 722 F.3d 788, 802 (6th Cir. 2013). ↩︎
  16. 593 F.Supp.2d 840 (E. D. Va. 2008). ↩︎
  17. Smithfield Compl. § 1-3, id. ↩︎
  18. 593 F.Supp.2d 840 (E. D. Va. 2008). ↩︎
  19. Smithfield Compl. § 1-3, id. ↩︎
  20. N.C. Gen. Stat. Ann. § 14-118.4; Va. Code Ann. § 18.2-59 (West). ↩︎
  21. Smithfield Foods, 593 F.Supp.2d at 845-47. ↩︎
  22. Benjamin Levin, Blue-Collar Crime: Conspiracy, Organized Labor, and the Anti-Union Civil RICO Claim, 75 Alb. L. Rev. 559, 624-26 (2012). ↩︎
  23. U.S. Department of Justice (report), Local Prosecution of Organized Crime: The Use of State RICO Statutes, October 1993. https://bjs.ojp.gov/content/pub/pdf/lpocusricos.pdf. Florida’s state RICO law, for example, maintains a five-year statute of limitations, compared to the implied four-year limitations period in federal civil RICO cases. See 2022 Fla. Stat. § 895.05(11). ↩︎
  24. 410 U.S. 396 (1973). ↩︎

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