The Supreme Court Is About to Make It Even Riskier to Strike

The Supreme Court Is About to Make It Even Riskier to Strike

The Supreme Court Is About to Make It Even Riskier to Strike

The Roberts court is famously anti-union. With Glacier Northwest v. Teamsters, it’s poised to make it easier for employers to sue striking workers.


The Supreme Court is the place labor rights go to die. It has been that way since John Roberts became chief justice in 2005. During his tenure, the court has issued a string of anti-employee decisions and taken particular glee in union-busting. If you are a worker or a union whose case ends up before his court, you’ve already lost. The only question is how much collateral damage that court will do to organized labor en route to ruling in favor of corporations and paymasters.

This week, it was the Teamsters’ turn to get whacked. The Supreme Court heard oral arguments in Glacier Northwest Inc. v. International Brotherhood of Teamsters. While the Teamsters are sure to lose, an extremist ruling from Roberts and the jackboots could seriously weaken the right to strike in this country.

At the center of the case is a strike that Teamsters Local 174 organized against Glacier Northwest, a concrete company in Seattle, in 2017. Drivers showed up to work on strike day as normal. Those with early routes had their trucks filled with cement and went out to make deliveries. But after the final negotiations with the company broke down, the drivers went on strike. Those out on routes were told by the union to drive their trucks back to the company and leave them running so the cement wouldn’t immediately harden, which the drivers did. Management couldn’t decant the cement or make all of the deliveries in time, and some of the cement hardened and had to be destroyed.

The strike lasted a week. Afterward, Glacier sued the Teamsters for intentional destruction of company property. The case was dismissed by the Washington State court, which said that the dispute should first be heard by the National Labor Relations Board (NLRB). Glacier appealed. The company argued that it could skip NLRB review (and the critical worker protections and labor expertise the board provides) because, it alleged, the strikers had inflicted “intentional” property damage that placed its actions outside the scope of the NLRB. That’s how the Teamsters ended up buried in John Roberts’s end zone.

Simply getting to the Supreme Court is a significant victory for management that could have a chilling effect on the ability of workers to strike. Unlike, say, abortion rights, the right to strike is protected under federal law—specifically, under the National Labor Relations Act (NLRA). That law normally supersedes (lawyers use the word “preempts”) state tort claims like the one filed by Glacier, but there are edge cases. The law requires striking employees to take “reasonable precautions” to make sure that their employers’ property is not damaged, and the law clearly prohibits striking employees from taking active measures to damage or vandalize property. A striking UPS driver could not, for instance, drive their truck into the middle of Madison Avenue, shout “gifts from Jeff Bezos,” and walk away. But a striking driver could refuse to make deliveries and, if those packages contained perishables that spoiled, the strikers wouldn’t be liable under the NLRA, even if management wanted to lodge a state tort claim against them.

I do not think there is a good argument that the Teamsters went beyond their rights under the NLRA. The strikers didn’t intentionally destroy the cement; the cement did that all on its own. Workers are under no obligation to continue working after they strike—unless they deal with truly dangerous materials like nuclear waste—and the people who think they are obligated to keep working must not be familiar with the definition of the word “strike.”

Glacier argues that the Teamsters intentionally filled up their trucks and drove them away, putting Glacier in an untenable position, but management knew or should have known that a strike was possible should negotiations break down. Glacier could have decided not to ask drivers to fill the trucks on a day that a strike was imminent. Instead, it decided to work its employees until the very moment they walked out. Moreover, the striking workers did bring the trucks back to the lot and kept them running with the express purpose of preventing the cement from solidifying. It’s not their fault that management didn’t have the skills to save their precious property. Maybe next time managers of quick-dry cement companies should negotiate with more alacrity.

It should surprise no one that the conservative justices, especially Roberts, took the side of management in this case. At oral arguments, Roberts repeatedly asked lawyers for the Teamsters why the law should protect their “intentional” destruction of property. He didn’t accept arguments that “spoilage” of goods is often an outcome of strikes, and that spoilage has not been enough to get workers accused of “intentional” destruction of property in the past.

I’m sure many people will agree with Roberts’s analysis here, because the tendency of regular people to identify with the corporate paymasters in any dispute with labor is one of the most consistently cursed aspects of the American experiment. We see it every time there’s a sports-league strike, every time there’s a transportation industry strike, and even when coffee workers try to organize. We are a nation beset by scabs who would rather lick a jackboot than be inconvenienced as workers fight for a better deal.

However, even those inclined to reflexively side with management should consider that the NLRB, not the Supreme Court, is the institution that literally exists to adjudicate these kinds of disputes. Not only is it filled with labor law experts, but these experts are able to make sure the federal law is applied reliably and consistently across all industries, in all parts of the country, for every worker. Putting these cases in state courts is a move designed specifically to increase confusion and conflict in the law—which hurts labor interests. It’s hard to organize strikes when you have no idea which laws may apply when your people walk out, and even harder when those laws change on the whims of state court judges who may or may not be biased toward industries particularly vital to their state’s economy.

The Washington State court that initially heard the Glacier lawsuit didn’t make a ruling in favor of Glacier or the Teamsters. Instead, the court did what it was supposed to under the terms of a previous Supreme Court decision when it kicked the case to the NLRB. That earlier decision flows from a 1959 Supreme Court case called San Diego Building Trades Council v. Garmon. In that case, the court decided that when a labor dispute involves a matter that is “arguably” protected by the NLRA, the case must be heard by the NLRB.

By bringing the case in state court first, Glacier was trying to make an end run around the NLRB, and that’s why its case was (appropriately) dismissed. But Noel Francisco (the solicitor general under Donald Trump who now works at Jones Day, the law firm that acts as a holding pen for Trump and MAGA lawyers before they’re unleashed again in future Republican administrations), argued that the word “arguably” somehow means that the Teamsters have to prove that there’s no possible way that Glacier could win in front of the NLRB before it can get the case kicked out of state court.

This seems like a good time to mention that the NLRB general counsel found, in a related complaint brought by the Teamsters, that the strikers’ conduct was “actually protected” under the law. But Glacier doesn’t want to let the NLRB rule (because it would almost certainly lose) and would rather fight this out in state court.

That’s really what the larger conservative movement gets out of this case. If Glacier wins, all management has to allege is that striking workers “intentionally” destroyed property and then, even if management is clearly wrong, labor unions are forced to fight the company in expensive litigation in state court instead of moving to the institutional experts at the NLRB. This case is part of the general conservative fight against the administrative state, and it’s also an attempt to further drain labor unions of time and resources so that every strike carries an additional threat of years-long litigation even after the initial dispute is resolved.

And Glacier will win. Every labor case in front of this court starts out 6-3 in favor of management, but in oral arguments this case sounded more like an 8-1 or even 9-0 ruling in favor of Glacier. Justices Sonia Sotomayor and Ketanji Brown Jackson both moved toward essentially accepting Roberts’s premise that the Teamsters’ actions were “intentionally” destructive, and seemed to be trying to tease out a rule about intentionality that would stop somewhere short of a full repudiation of the NLRB’s role in regulating these disputes.

I don’t think these justices agree with the conservatives: At one point Sotomayor even incredulously asked Francisco, “Are you saying you can only go on strike at the end of the day?” But we’ve seen liberal justices strategically voting with the conservatives on the court in hopes of moderating the eventual controlling conservative opinion. Justice Elena Kagan seemed to stand her ground on the side of the workers more than the other two liberals, but Kagan is often the leader of this kind of strategic voting.

Even a modified win for management will have significant repercussions on the ability of workers to strike. If the NLRA can essentially be nullified by a bevy of state court claims, the right to strike won’t mean very much. What good is a right if using it costs more than you can pay in legal fees?

There simply are no workers’ rights that can withstand the Roberts court. At every point this court seeks to weaken labor and put more power and money in the hands of management, its lawyers, and the courts themselves. And far too many people who will never be on the receiving end of Roberts’s largesse are nonetheless, by virtue of the party they support, taking the side of property over people.

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