Today’s US Supreme Court ruling in the Glacier Northwest v. International Brotherhood of Teamsters case was a blow to workers—but not quite the knockout punch hoped for by the Chamber of Commerce. Despite the court’s 8-1 decision favoring the employer, the justices made a relatively narrow ruling, rather than a broad one weakening the National Labor Relations Board (NLRB) even further. In the future—the near future—labor will not be so lucky as to lose this lightly, and workers should get ready to fight what’s coming.
First, the good news, such as it is: Today’s decision leaves intact a long-held legal doctrine known as the Garmon preemption, and therefore keeps the NLRB as the decision-maker on what constitutes “reasonable precaution” in worker strikes. Cheerleaders for free enterprise were hoping to replace that long-established federal jurisdiction with state-level tort law. Those cheerleaders didn’t get all they wanted today.
The bad news—a harbinger of the future—is on full view in Justice Samuel Alito’s concurring opinion, where he makes clear that he is ready and willing to kill Garmon as soon as the court can get a better case with which to achieve this Chamber of Commerce objective. He’s joined by the other hard-core anti-labor ideologues on the court—Justices Thomas and Gorsuch—in a second concurring opinion, revealing their hands clearly so we can count: Three Justices are ready to totally eviscerate the NLRB as part of their determined campaign to gut the administrative state. Agency by agency, they’re progressing when they get the chance, as we saw this court do just last week to the Environmental Protection Agency, all but stripping it of any power at all to enforce the Clean Water Act.
Once these three do get a better shot, in a less procedurally layered case, they will take it, and workers and the NLRB will not escape the full force of this agenda. What the court did today, in essence, was simply say workers can’t call surprise strikes that cause property damage. What’s coming is much worse, and its potential implications so dire, that it’s worth not only unpacking this ruling’s highlights but also focusing urgently on strategy for the labor movement as a whole and on what workers can and should be doing right now.
Glacier has its origin in a 2017 contract dispute between Teamsters Local 174 and five cement companies in the Seattle area, led by Glacier Northwest. Drivers whose trucks still had concrete in them when a strike began took what they assert was “reasonable precaution,” notifying management that they had left the trucks running so the drums would continue rotating and the concrete would not harden and destroy the trucks. Because the company failed to make any contingency plans around the strike, however, the concrete had to be offloaded and left to harden rather than delivered to customers. That should have been the end of it. But, nearly four months later, Glacier sued Local 174 in state court—not at the NLRB—alleging tortious damages from the destruction of concrete during the strike.
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On its face, Glacier is about whether the Teamsters Union owes money to a Washington concrete company. But the real purpose of pushing this case was to upend nearly 100 years of legal precedent and congressional intent by stripping power from the NLRB, the federal agency charged with protecting workers’ rights to collective action at work.
Under Garmon, if a lawsuit is brought in state court over conduct arguably protected under federal labor law—say, nonviolent peaceful direct action by workers—the state court must defer to the NLRB’s determination of whether the conduct was in fact protected. This is lets the federal agency responsible for handling thousands of labor disputes every year decide which actions by workers are protected by the NLRA, rather than some random state court judge—most of whom hear only a few labor cases a year, and have little to no expertise on the field. Pre-Garmon (and pre-NLRA), state court interventions into labor disputes were almost uniformly disastrous for workers and unions, creating legal uncertainty, fear, and a tool for employers to impose ruinous liability on workers taking collective action. And that’s precisely the world that the powerful interests who had lined up in support of Glacier’s arguments, led by the US Chamber of Commerce, hoped to achieve.
Let’s be clear: The point of an effective strike is to cost a recalcitrant employer money, giving them a concrete (if you’ll excuse the pun) incentive to negotiate in good faith. That’s the most important source of leverage that striking workers have in their unequal relationship with their employer, as Glacier shows. When negotiations broke down in 2017 with the concrete drivers, after employers had refused to provide information legally required in union negotiations, categorically rejecting workers’ proposals without explanation, the 85 concrete truck drivers at Glacier went on strike. When the strike threatened to spread to the 200 workers at the remaining four companies, the employers quickly came to the table. Workers won a four-year contract with record-setting wages, improved pensions, and county-level job security. These are exactly the kind of settlements the Chamber of Commerce wants to prevent.
Today’s narrow ruling affirms Garmon by splitting hairs about whether sufficient notice for the cement workers’ strike had been provided by the union. The court decided there was not sufficient notice, stating that because the cement had all been loaded into the trucks just before the strike was called, the workers failed to exercise “reasonable precaution” against property damage—even though the drivers had left the drums rotating, and thus the trucks themselves were not damaged, the employers didn’t get to deliver the cement that was full in the trucks, meaning they ate the cost of cement that had to be removed from the trucks.
Today’s decision sends the case back to the Washington State Supreme Court. Alito double dares them to rule in the way any good labor organizer would want, to back the Teamsters and tell the bosses to eat their losses and, next time, be more reasonable at the negotiations table so they can avoid strikes. However, if the Washington Supreme Court does this, Justice Alito basically says the case will then come right back to the Supreme Court—at which point he, Thomas, and Gorsuch will merely have to pick up two more of their tribe to do what they couldn’t in this round because the case was messy.
The best thing the Teamsters can do right now is work to reach a settlement with Glacier outside of the courts, agreeing to pay for the cement, and avoiding a return to court—thus depriving Alito, Thomas, and Gorsuch of an opportunity to bring this case directly back, recruiting two more right-wing justices, and delivering the knockout punch they seek.
In the meantime, what does this decision mean for workers elsewhere who seek to utilize their most powerful weapon? For one thing, it means no surprise strikes where property damage might occur. Workers still can wage strikes that will cost an employer money even after this ruling. But if we are being smart strategists, we should ready ourselves for where this relentlessly pro-business court is clearly heading. The first step is to build strong commitment among the ranks for super-majority strikes with steadfast solidarity and support from other workers, the community, and politicians. To do this requires bringing more workers into every step of the process of collective bargaining, through negotiations that are transparent, big, and open—an approach to negotiating I call “high participation, high power.” (In Rules to Win By: Power and Participation in Union Negotiations, I show exactly how workers can transform the often byzantine manner in which most unions practice negotiations—cloaked in secrecy and with little or no worker or community involvement—flipping the script and using the negotiations process itself to build the kind of power, solidarity, and strike-readiness required to overcome the stiffest odds.)
The second thing workers must do preemptively is to propose and win contract language that includes an explicit waiver of the employer’s right to take any tortious claims to court. Employers regularly insist that workers waive their rights to sue on a plethora of issues; it’s time to use employers’ predisposition against court claims against them. Winning anything like that, however, will take the power built through workers’ taking ownership of their demands and strategy in the negotiations process, choosing to exercise their own right to strike with their coworkers.
Risk-averse voices in too many national unions—already skittish about workers’ using their power to strike—may have even perversely welcomed a broader ruling than Glacier, which would have provided an excuse to abandon the strike in the private sector altogether. But workers serious about winning the quality of work and life they need to reverse widening economic and political inequality are going to have to ignore those voices—today, tomorrow, and whenever the next anti-worker ruling arrives. Risk-averse public-sector union officials used the air traffic controllers’ union (PATCO) strike in 1981, during Ronald Reagan’s presidency, in this very way, claiming—falsely—that workers could no longer strike. Yet teachers waging illegal strikes in West Virginia and Arizona recently proved that banned strikes can still win when worker participation is massive and durable—100 percent or close to it united in the struggle for economic freedom and backstopped by deep and wide community support.
Despite this country’s dizzyingly pro-employer legal environment, strikes have been on the rise since 2018, with the Writers Guild of America and educators in Oakland and Los Angeles only the most recent groups of workers leading the charge. The corporate class has taken note, and prepared its counterattack, teeing up Glacier in the hope that the court could use it as a pretext to undermine bedrock principles of American labor law. Only because this particular case was overly complex—putting layers of procedural considerations between the question at hand and Alito and company’s lust to gut the right to strike—were we spared a broad and horrific ruling. For the moment. But workers will need to double down on using every step of negotiations to build the ability to wage big, smart, strong, and durable strikes—that is, they should be ready to enforce their right so that workers, not lawyers, decide whether, when, and how to use the power of a strike.