[With Glacier, eight justices sabotaged the most powerful weapon
unions have: the strike.]
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THIS IS NOT THE END OF THE SUPREME COURT’S WAR ON LABOR  
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Elie Mystal
June 2, 2023
The Nation
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_ With Glacier, eight justices sabotaged the most powerful weapon
unions have: the strike. _

The west facade of the Supreme Court Building in Washington, D.C., at
dusk., Joe Ravi / CC-BY-SA 3.0

 

Nobody should be surprised that this Supreme Court, controlled as it
is by Republicans, is viciously anti-labor. We’d have to go back
more than 100 years, to before the New Deal, to find a collection of
justices whose antipathy toward workers and their rights matched that
of the current Roberts court. In a decision released yesterday, the
Supreme Court merged its disregard for workers’ rights with its
hatred of the administrative state to produce a ruling that undermines
the most powerful tool labor has to defend itself from unfair or
unsafe working conditions: the strike.

The case
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called _Glacier Northwest Inc v. International Brotherhood of
Teamsters_. At issue was a 2017 strike
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by Teamsters Local 174 against Glacier Northwest, a cement company in
Seattle. The teamsters showed up for work like on a normal workday,
loaded their trucks with wet cement, and set out to make deliveries.
But when labor negotiations with Glacier broke down, the teamsters
returned the trucks to the company and walked off the job. The workers
left the cement mixers running, but some of the product hardened,
rendering it useless. After the strike was over, Glacier sued the
teamsters union in a Washington state court for damages caused by the
strike.

All strikes cause economic harm to the employer. That is literally the
point of strikes. Suing workers or their unions for economic damages
that happen as a result of them obviates the point of having a strike.
And yet most people understand that striking workers cannot
do _extra_ damage to their employers beyond their refusal to work.
You can’t walk out on the job and set fire to the building on your
way out. Everybody understands this. One way of looking at this case
is to ask whether loading up trucks with cement and then walking out
constitutes extra harm to the employer, harm that the teamsters should
be liable for.

The Supreme Court, by a vote of 8-1, said yes. Writing for the
majority, Justice Amy Coney Barrett found that the teamsters created
the harm to Glacier by showing up for work in the first place. She
writes: “So by reporting for duty and pretending as if they would
deliver the concrete, the drivers _prompted the creation_ of the
perishable product [emphasis in the original]. Then, they waited to
walk off the job until the concrete was mixed and poured in the
trucks. In so doing, they not only destroyed the concrete but also put
Glacier’s trucks in harm’s way.”

I think Barrett and the majority are wrong here. The workers were not
“pretending” to work; they showed up to work. The right to strike
is not limited to the beginning or end of a workday. Somebody should
inform Barrett that a key difference between _workers_ and slaves is
that workers can stop working whenever they damn well feel like it. If
Glacier didn’t want their workers to strike, they should have made a
better deal.

But whether you agree with me or Barrett on the question of added harm
is, or should be, irrelevant under the law. That’s because the right
to strike is protected under the National Labor Relations Act (NLRA),
and to support that right, the government created a panel of experts
to determine what is and is not allowed under that act. It’s called
the National Labor Relations Board (NLRB). The NLRB—not Glacier, not
a state court, and not the US Supreme Court—is supposed to get first
crack at determining whether a union’s activities are protected
under the NLRA.

According to the Supreme Court’s own precedents (made clear in a
1957 case called _San Diego Building Trades Council v. Garmon_
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labor disputes until the NLRB has had a chance to rule. As Justice
Ketanji Brown Jackson argues in her lone dissent, the NLRA “requires
state courts to take a ‘jurisdictional hiatus’ while the [NLRB]
considers the dispute in the first instance.” Only if the NLRB
determines that the union activity is unprotected can lawsuits against
unions or workers proceed to the state courts.

Here, a Washington state court found that the teamsters’ actions
were “arguably protected” by the NLRB and dismissed the case.
Then, the general counsel of the NLRB filed an administrative
complaint against Glacier. Clearly, both the NLRB and the state court
think that this case should first be settled by the NLRB.

But Barrett and the majority on the Supreme Court disagreed. Instead
of waiting for the NLRB’s final ruling, the Supreme Court interposed
itself ahead of the NLRB—who are, again, the experts in labor
disputes—and ordered the Washington state court to entertain
Glacier’s lawsuit, which it previously rejected. That means the
Teamsters now have to defend themselves in front of state judges
instead of being able to argue to federal experts about their right to
strike that is supposed to be protected by a nationwide law.

The ramifications of this ruling will be far-reaching. If employers
can run to state courts every time they don’t like how striking
workers strike, it vitiates the power of the NLRB and the right to
strike in general. It makes the potential cost of striking
prohibitively high to the union that organizes the strike. Imagine
screenwriters being sued for damages in California state court for
making Hollywood grind to a halt. Imagine coal workers being sued for
damages in a West Virginia state court. Imagine Ron DeSantis and his
ruling junta passing state laws that make it almost impossible to
strike in Florida, and having workers know they’ll have to defend
themselves in front of one of DeSantis’s handpicked judges instead
of being heard by the experts on the NLRB.

The whole point of the NLRA is to create a national baseline for
workers’ rights. This Supreme Court effectively rejects that
authority and is increasingly leaving it up to every individual state
court to determine if workers are striking _in the right way_. In
this case, even the state court the Supreme Court is giving power to
thought that the NLRB was the right institution to deal with this
dispute.

This ruling was 8-1. Justices Sonia Sotomayor and Elena Kagan joined
with the conservatives to produce this frontal attack on labor rights.
I have a theory as to why: Barrett’s majority opinion is full of
pearl-clutching over cement and its relative wetness. She’s
basically arguing that she can ignore the NLRB when workers create
(according to her) the problem and the conditions for harm. But
Justice Clarence Thomas wrote separately, joined by Neil Gorsuch, and
those two are always down to clown on the administrative state. They
argue that the NLRB shouldn’t be able to preempt a state court
action in any situation. A ruling along the lines of what Thomas
suggests would essentially revoke the concept of national labor
rights, or the right to strike, and instead let each individual state
decide whether workers could walk out on the job. Thomas and Gorsuch
hate federal government experts almost as much as they hate ethics.

By joining Barrett, Sotomayor and Kagan may have prevented the Thomas
and Gorsuch opinion from gaining a plurality of justices (Justice
Samuel Alito wrote a separate concurring opinion, arguing that the
teamsters’ conduct was unprotected regardless of what the NLRB
says), and thus preserve the idea that the NLRB could have some power
in the future. I’m grasping at straws a bit to find some
justification for this ruling from the other two liberals, but I guess
an 8-1 ruling that the NLRB can be ignored is preferable to a 5-4
ruling that the NLRB should not exist.

RELATED ARTICLES 

HOW SHOULD WORKERS RESPOND TO THE SUPREME COURT’S RULING IN
“GLACIER NORTHWEST”?
[[link removed]] Jane
McAlevey [[link removed]] 

DON’T REFORM THE COURTS. DISEMPOWER THEM.
[[link removed]] Jeet
Heer [[link removed]]

But this ruling all but ensures that Thomas and Gorsuch will get
additional chances to finish their work of killing the NLRB. Barrett,
Sotomayor, and Kagan might think that this ruling will be cabled to
the specific situations where workers show up for work, strike in the
middle of the day, and “create” extra economic harm to their
employers, but the practical effect of this opinion will be to give
every employer an incentive to sue in state court for damages that
they would not have been able to get through the NLRB. It will make
every labor union try to game out which states give them the best
chance to strike, as opposed to striking under the ironclad protection
of federal law.

This seems like a good time to mention that organized labor is a core
constituency of the Democratic Party. Perhaps the party that claims to
care about workers might want to look into doing something about the
most anti-labor court anybody alive has ever seen? Perhaps expanding
the Supreme Court and adding more justices who will actually protect
labor rights should be a major part of the 2024 Democratic Party
platform? Just a thought, but don’t mind me; I’m just a guy who
thinks nine unelected judges shouldn’t be able to reverse the last
100 years of labor rights by judicial fiat.

_Copyright c 2023 The Nation. Reprinted with permission. May not be
reprinted without__ permission_
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Distributed by__ _PARS International Corp
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_ELIE MYSTAL is The Nation’s justice correspondent and an Alfred
Knobler Fellow at the Type Media Center. His first book is the New
York Times bestseller Allow Me to Retort: A Black Guy’s Guide to
the Constitution [[link removed]]. He
can be followed @ElieNYC._

_THE NATION [[link removed]] Founded
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* Labor
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* Supreme Court
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* right to strike
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* National Labor Relations Board
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* unions
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* workers rights
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