[Last Thursday, the Supremes ruled against a union of cement-mixer
drivers—but their very odd decision could have been lots worse for
American workers.]
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TOSSED BY CEMENT MIXERS, THE COURT GROWS DIZZY  
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Harold Meyerson
June 5, 2023
The American Prospect
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_ Last Thursday, the Supremes ruled against a union of cement-mixer
drivers—but their very odd decision could have been lots worse for
American workers. _

The Glacier Northwest cement works in Kenmore, Washington, Joe
Mabel/Wikimedia Commons

 

On the face of it, last Thursday’s Supreme Court ruling returning a
lawsuit to a state court looks bad for unions. Eight of the Court’s
nine justices ruled in _Glacier Northwest v. International Brotherhood
of Teamsters, Local Union 174
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the union of the cement-mixer drivers based in Tukwila, Washington,
could be sued by their employer for damages inflicted on the
employer’s property; in this case, concrete that had dried and
hardened before it could be poured. The Washington State Supreme Court
had tossed the employer’s suit, saying that state laws in such
matters were preempted by the National Labor Relations Act, and that
jurisdiction belonged to the NLRB. Justice Amy Coney Barrett’s
opinion said that that court had erred, and the lawsuit could
continue.

Many in the labor movement had feared that the Court’s ruling in
this case would significantly impinge on unions’ right to strike. It
didn’t quite work out that way, as it focused so narrowly, and
unusually, on the particulars of the case (and may well have gotten
those particulars wrong) rather than any underlying laws.

Barrett’s opinion doesn’t dispute that strikes generally inflict
economic damage on employers—at least, a loss of revenue. That’s
entirely permitted by the NLRA, Barrett noted. The ruling also cited
the Court’s 1959 decision in _San Diego Building Trades Council v._
_Garmon_, which stated that when the activity in question “is
arguably subject” to the NLRA, “the States as well as the federal
courts must defer to the exclusive competence of the National Labor
Relations Board.” Indeed, _Garmon_ was the basis of the Washington
court’s refusal to try the case.

Nevertheless, Barrett ruled that the union’s conduct was so
deliberately destructive of property that it wasn’t even “arguably
subject” to the NLRB’s jurisdiction.

And yet, consider the following sentence about the Teamsters, which
begins her statement of the “facts” in the case:

“Their labor union allegedly designed the strike with the intent to
sabotage Glacier’s property.”

Allegedly?

On the 2017 day that cement-mixer drivers for the Glacier Northwest
company went on strike, the drivers struck while a number of them were
already on their routes, which Barrett also acknowledges is
NLRA-protected conduct. (Indeed, strikes generally begin when workers
are at work; you can’t walk off the job when you and your fellow
workers are at home asleep at 2 a.m.) The workers drove their mixers
back to the company’s yard and kept the mixers turning, which keeps
the concrete from hardening.

However, Barrett notes, “the Union did not take the simple step of
alerting Glacier that these trucks had been returned.”

This somehow presumes that company managers wouldn’t have noticed
that a number of trucks had suddenly reappeared in the yards, hours
before they were scheduled to. That aside, in its suit, Glacier
Northwest alleged that hardening concrete risked damaging the trucks
themselves, though it also admitted that no trucks had in fact been
damaged. It continued that its supervisors had to pour out the
concrete in a safe location, though some of it, once poured, then
hardened and ceased to be usable.

The Court doesn’t usually deliver rulings that assess the factual
details of a case, confining itself almost always to the issues of
constitutional law.

For its part, the Teamsters argued that it told drivers to return the
trucks to the yard and to keep their mixers turning, thereby _not_
intentionally damaging Glacier Northwest’s property, which is
conduct the NLRA expressly forbids. Union lawyers further argued that
previous Court rulings had made clear that the spoiling of perishable
goods could not be the subject of lawsuits, and that jurisdiction in
such cases belonged to the NLRB. (They cited one decision about
strikers who handled raw poultry, another about striking milk truck
drivers, and a third about striking cheese processors.)

Let’s stop for a moment and consider where the Court is headed on
this. As a guide, here’s an assessment from Catherine Fisk, the
Barbara Nachtrieb Armstrong Professor of Law at UC Berkeley, and one
of the nation’s leading labor law scholars, who wondered aloud to
the _Prospect_, “Is this a special rule for cement trucks?
Distinguishing between poultry, milk, and cheese spoilage on one side
and cement on the other?”

Barrett asserted in the ruling that “by reporting for duty and
pretending as if they would deliver the concrete, the drivers
_prompted the creation_ of the perishable product.” But how is that
different from the milk truck drivers of yore striking while en route,
or the poultry workers separating the legs from the thighs and only
then walking off the job, leaving the wings still affixed to the
breasts? To be sure, concrete weighs more than chickens and cheese,
but if that’s the basis of a Supreme Court ruling, the Court could
at least do us the courtesy of stipulating the exact poundage at which
the NLRB’s _Garmon_ jurisdiction grinds to a halt.

As Justice Ketanji Brown Jackson noted in her dissent, the Court
doesn’t usually deliver rulings that assess the factual details of a
case, confining itself almost always to the issues of constitutional
law. And yet, Barrett’s opinion reads almost entirely like that of a
county court trial judge, weighing management’s claims against the
workers’. And even then, it begins with the word
“allegedly”—accepting, as it does, the company’s statement of
the facts, hedged only by that adverb. One lawyer to whom I spoke said
that in asking the Court to dismiss this case outright, the union’s
lawyers inadvertently enabled the Court to accept as fact the
submission from the company. In light of the extensive documentation
those lawyers have also produced of the union instructing its drivers
to return the trucks and keep them mixing, however, several other
attorneys have told me that the original trial court could well reject
the company’s claims, as could the NLRB, which has yet to rule on
the case.

All that said, why on earth did Elena Kagan and Sonia Sotomayor join
with the Court’s six conservatives in signing on to Barrett’s
opinion? Kagan and Sotomayor, after all, have a long history of
supporting workers’ collective and individual rights, and are, if
anything, staunch guardians of the rights enshrined in the NLRA.

For that, we need to consult the concurring opinion from Clarence
Thomas, which Neil Gorsuch signed onto as well. In it, Thomas
suggested that the Court should go much further than it did in this
case and get into the more fundamental question of whether the
NLRA’s right to preempt state courts as laid down in _Garmon_
shouldn’t be subject to the Court’s revision or revocation. “We
should carefully reexamine whether the law supports _Garmon_’s
unusual pre-emption regime,” Thomas wrote, while noting that
Barrett’s governing opinion didn’t even touch upon that larger
topic.

In light of the Thomas-Gorsuch opinion, there’s been considerable
speculation that Kagan and Sotomayor went along with Barrett in a de
facto deal to fend off the possibility of a ruling that did indeed
strike down _Garmon_ and thereby give (largely right-wing) judges in
(largely right-wing) states the go-ahead to start issuing rulings that
fined unions for the financial damages that employers incurred in the
course of a strike. And even if that opinion didn’t go that far, it
could have done more overtly, with support of all six conservative
justices, what Thomas and Gorsuch came close to doing in their
concurrence: inviting the enemies of unions to file a case that
directly challenged _Garmon_.

That was precisely the decision that unions had feared might come out
of the _Glacier Northwest v. Teamsters_ case, which explains the
relief with which many unions greeted last Thursday’s ruling.
“It’s not good,” AFL-CIO Senior Counsel Craig Becker told the
_Prospect_, “but it’s not that bad compared to what it could have
been.”

Coincidentally, these were almost the exact words spoken by Democratic
members of the House and Senate about the debt ceiling deal they sent
to the president, also on Thursday.

Thus ended the “not that bad compared to what it could have been”
week in the nation’s capital.

* Glacier Northwest v. International Brotherhood of Teamsters
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* Local Union 174;
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