In a shameful decision last week, eight members of the U.S. Supreme Court weakened the right to strike. Only Justice Ketanji Brown Jackson stood up for the workers. In her 27-page dissent in Glacier Northwest, Inc. v. International Brotherhood of Teamsters, Jackson wrote, “The right to strike is fundamental to American labor law.” Indeed, it is the threat of a strike that gives workers leverage during contract negotiations with an employer. Jackson continued:
Workers are not indentured servants, bound to continue laboring until any planned work stoppage would be as painless as possible for their masters. They are employees whose collective and peaceful decision to withhold their labor is protected by the [National Labor Relations Act] even if economic injury results.
General President of the Teamsters Sean M. O’Brien denounced the “political hacks at the Supreme Court,” maintaining that they ruled “in favor of corporations over working people.” The “corruptible justices,” he said, “should be ashamed of themselves for throwing out long-standing precedent and legislating from the bench.”
In 2017, after contract negotiations broke down because the employer failed to produce legally required information, a Seattle Teamsters local union called a strike against Glacier Northwest, a ready-mix concrete company.
Eighty-five truck drivers stopped working. Sixteen of them had trucks loaded with cement that hadn’t been delivered. They returned the trucks to the employer and left the mixing drums rotating to prevent the concrete from hardening. Glacier was unable to deliver all of the concrete and it was ruined. But because the Teamsters had ensured that they remained running, Glacier was able to dispose of the concrete without damaging the trucks.
Glacier sued the Teamsters in Washington State court for tortious destruction of property and sought damages for the undelivered concrete. The Washington Supreme Court dismissed Glacier’s lawsuit, ruling that the National Labor Relations Board (NLRB) had initial jurisdiction to hear the case. The following month, the NLRB’s General Counsel issued an unfair labor practice complaint against Glacier for retaliating against the Teamsters for their strike.
Eight members of the Supreme Court ruled for Glacier, concluding that its state court lawsuit against the Teamsters could proceed. Amy Coney Barrett wrote for the majority, which included John Roberts, Brett Kavanaugh, Sonia Sotomayor and Elena Kagan. They sent the case back to the Washington State court. Clarence Thomas, Samuel Alito and Neil Gorsuch concurred in the result.
The NLRB Determined That the Union’s Conduct Was “Arguably Protected”
In the leading case of San Diego Building Trades Council v. Garmon, decided in 1959, the Supreme Court held that when a union engages in activity that is “arguably protected” under the National Labor Relations Act (NLRA), the NLRB has jurisdiction to first decide whether the activity was in fact protected. That is because the NLRB is a specialized administrative agency with the knowledge and experience to resolve labor disputes.
“The filing of the General Counsel’s administrative complaint necessarily suffices to establish that the Union’s strike conduct is ‘arguably protected’ within the meaning of Garmon,” Jackson wrote. “Thus, the General Counsel’s complaint should have marked the end of any court involvement in this matter at this time.” The courts had “no business delving into this particular labor dispute at this time.”
Jackson argues that the NLRA “requires state courts to take a ‘jurisdictional hiatus’ while the [NLRB] considers the dispute in the first instance.” It is only if the NLRB concludes that the union activity is not protected that lawsuits against unions or workers can be heard by the state courts.
The majority held that the NLRA didn’t preempt the lawsuit because the union didn’t take “reasonable precautions” to protect Glacier’s property from imminent, foreseeable danger. The union called the strike “after its drivers had loaded a large amount of wet concrete into Glacier’s delivery trucks,” Barrett wrote.
“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,” wrote Barrett. “Because the Union took affirmative steps to endanger Glacier’s property rather than reasonable precautions to mitigate that risk, the NLRA does not arguably protect its conduct.”
As Jackson pointed out, however, the workers whose trucks had been loaded left the drums turning to protect the employer’s trucks, which were not damaged. Glacier, which had to know a strike was imminent when contract negotiations collapsed, chose not to hire replacement workers or use workers who weren’t striking to deliver the concrete.
Moreover, Jackson wrote, “it is indisputable that workers have a statutory right to strike despite the fact that exercising that right risks economic harm to employers.” She added, “the threat of economic harm posed by the right to strike is a feature, not a bug, of the NLRA.” That’s the point of a strike. “Unions leverage a strike’s economic harm (or the threat of it) into bargaining power, and then wield that power to demand improvement of employees’ wages and working conditions.”
The Supreme Court Usurped the NLRB’s Authority to Make Factual Findings
The high court weakened Garmon by holding that an employer may sue a labor union in state court before the NLRB decides whether the strike was protected by federal labor law. The majority of the Supreme Court took it upon itself to make factual findings that are better left to the administrative agency Congress created to make those determinations.
“Using the facts alleged by the employer, the Court dangerously opines on the propriety of the union’s conduct in the strike, engaging with questions that Congress intended the National Labor Relations Board to address,” American Constitution Society President and former Sen. Russ Feingold said.
The NLRB hears thousands of labor disputes every year but state courts may handle only occasional labor cases. “This case is Exhibit A as to why the Board — and not the courts — should ordinarily take the first crack at resolving contentious, fact-bound labor disputes of this nature,” Jackson wrote. She charged that the majority “misapplies the Board’s cases in a manner that threatens to both impede the Board’s uniform development of labor law and erode the right to strike.”
Jackson noted that the NLRB is still investigating the Glacier case to determine whether the union’s strike activity was actually protected by federal law. In Garmon, the court held that if the NLRB decides the union acted legally, “the matter is at an end, and the States are ousted of all jurisdiction.” In Glacier, the Supreme Court determined that an employer can sue a union in state court before the NLRB decides whether the strike was lawful.
The Future of the Right to Strike
Making it easier for employers to sue unions in state court will chill the willingness of labor unions to strike because they risk costly litigation and legal judgments.
In her recent article in The Nation, labor expert Jane McAlevey proposes a two-part strategy for organized labor in the wake of Glacier. First, unions should “build strong commitment among the ranks for super-majority strikes with steadfast solidarity and support from other workers, the community, and politicians.” Second, workers should insist on language in their contracts that employers agree to waive any right to file tort claims in state court.
Meanwhile, Thomas, Gorsuch and Alito are gunning for Garmon. The concurrences of Thomas and Alito (both joined by Gorsuch) make clear that they would like to reconsider Garmon in a future case. Sotomayor and Kagan might have signed onto the majority to prevent an even worse result if one of the concurrences had attracted enough right-wing votes to further gut or even overturn Garmon.
Overruling Garmon would sideline an administrative agency (the NLRB) in favor of courts with little expertise. This is consistent with the antipathy of Gorsuch, Thomas and Alito to the “administrative state.”
On May 1, at least four members of the court granted certiorari to reconsider a longstanding precedent in the case of Loper Bright Enterprises v. Raimondo. At issue is the doctrine of Chevron deference, which protects reasonable decisions of administrative agencies from judicial review. The doctrine is opposed by corporations, which eschew regulation.
The members of the far right-wing Supreme Court have again demonstrated their willingness to overrule longstanding precedent if it suits their agenda, be it economic, political or religious.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, the bureau of the International Association of Democratic Lawyers, and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” Radio.
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