[ A case argued this week could give worker-phobic Republican
justices a chance to force workers to stay on the job.]
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WILL SCOTUS REVOKE THE RIGHT TO STRIKE?  
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Miles Mogulescu
January 13, 2023
American Prospect
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_ A case argued this week could give worker-phobic Republican
justices a chance to force workers to stay on the job. _

, Graeme Sloan/Sipa USA via AP Images

 

The right to vote and the right to collectively bargain and strike are
among the most fundamental democratic rights of American citizens. In
recent years, however, the ultra-right-wing Supreme Court majority has
issued a string of decisions that have systematically eroded these
rights.

This week, SCOTUS heard oral arguments in _Glacier Northwest, Inc. v.
International Brotherhood of Teamsters Local Union 174_. Should SCOTUS
rule in favor of the employer in this case, the right to strike could
be significantly suppressed. The case has come at a time when, in
response to growing economic inequality, union organizing and strikes
are growing at the fastest pace in recent history. Corporations fear
this trend, and a politicized right-wing Supreme Court majority could
help them slow it.

_Glacier Northwest_ is a case about Teamsters who drove the
company’s concrete-mixing trucks who went on strike. When the strike
started, some of the trucks were already on the road containing wet
concrete. The union told the strikers to drive the trucks back to the
company yard and leave their drums rotating so the concrete wouldn’t
become unusable by hardening or damage the trucks. Nevertheless, the
company was slow to remove the wet cement and some of it hardened,
becoming unusable. The company then had to break it up and dispose of
it. The trucks were not harmed. While the strike was settled in a
week, the company filed a tort claim against the union in Washington
state court, demanding damages for its economic harm that resulted
from the hardening of the cement.

The case wended its way through Washington state courts for several
years. (One of the reasons for delay in resolving the case is that
Glacier Northwest replaced its initial lawyers with the Republicans’
go-to white-shoe law firm Jones Day, whose senior partner and former
Trump White House counsel Don McGahn was instrumental in selecting and
shepherding through the nominations of Neil Gorsuch, Brett Kavanaugh,
and Amy Coney Barrett to the Court.)

Eventually, the Washington Supreme Court unanimously dismissed the
case on the grounds that it lacked jurisdiction, saying that the
proper forum for resolving it was the National Labor Relations Board.
The NLRB, as Justice Kagan observed in oral arguments, has experience
in adjudicating thousands of similar cases.

Glacier Northwest appealed to the U.S. Supreme Court claiming that the
economic harm to the company caused by the hardening of the cement
makes the case an exception to the National Labor Relations Act. With
a few exceptions such as vandalism or violence by the strikers, the
NLRA protects the right to strike and grants the National Labor
Relations Board, not state courts, exclusive jurisdiction to decide
whether a strike is protected by federal law.

Glacier argued that the union knew, or should have known, that the
cement would spoil. Therefore, the union’s actions were functionally
equivalent to vandalism and thus outside the jurisdiction of the NLRB.
As the union’s lawyer in the oral arguments, Darin Dalmat argued,
however, that SCOTUS has never before ruled that companies have the
right to bypass the NLRB and sue a union in state court because a
strike caused perishable products to go bad or that such fact patterns
are the functional equivalent of vandalism or violence.

 
Anything less than an affirmative reaffirmation by SCOTUS of the
importance of workers’ right to strike and the primacy of the NLRB
would have a chilling effect on unions.

During oral arguments, Justice Gorsuch asked the company’s lawyer,
Noel Francisco, Trump’s former solicitor general, what’s at stake
in letting state courts, rather than the NLRB, adjudicate claims
between employers and workers. In a frontal attack on administrative
agencies, Francisco responded hyperbolically that companies would
prefer not to be in a forum “where the agency is judge, jury and
executioner,” as though execution, as opposed to adjudication, is
one of the remedies available to the NLRB. Of course the NLRB, like
many administrative agencies, is tasked by Congress to adjudicate
cases. But Francisco seemed to be encouraging the conservative
justices to use this case to further their ongoing efforts to diminish
the administrative state.

During oral arguments, Justices Alito and Kavanaugh did not speak, and
Justices Gorsuch and Thomas only asked a handful of questions (which
could be a sign that at least four of the right-wing justices already
have their minds made up).

Somewhat surprisingly, the Biden administration, which claims to
generally be pro-labor (and often is), took what it characterized as a
neutral position between the company and the union. The union argued
that SCOTUS should reject the company’s appeal and uphold the
Washington Supreme Court’s decision dismissing the case, because the
NLRB, not the state court, is the appropriate forum.

By contrast, the Biden administration lawyers’ brief accepted
Glacier’s argument that in making its decision, the state court must
accept the company’s factual allegations (whether actually true or
not) that the workers did not fulfill their obligation “to take
reasonable precautions to protect the employer’s property from
foreseeable, imminent damage that would be caused by the sudden
cessation of work … The Act does not protect (or arguably protect)
such conduct.” They noted that after the state Supreme Court issued
its decision, the NLRB, based on its own investigation of the facts,
issued a complaint stating that the workers had engaged in protected
conduct under the NLRA and that the company’s state court suit is an
unfair labor practice. Nonetheless, they argued that since the NLRB
complaint came after the state Supreme Court decision, since that
court had not yet had the opportunity to consider the effect of the
NLRB’s complaint, SCOTUS should not address the issue now and
instead remand the case to the state court to resolve in that light.

In a Zoom briefing evaluating the oral arguments, representatives of
Demand Justice, a progressive legal advocacy group, speculated that
the Biden administration, as well as some of the liberal justices, may
have been seeking a “muddy middle” that could bring along a few
right-wing justices and be less bad than an outright decision in favor
of the company. (Demand Justice was dubious, however, that the
right-wing justices have any interest in a “muddy middle”
decision.)

Anything less than an affirmative reaffirmation by SCOTUS of the
importance of workers’ right to strike and the primacy of the NLRB,
with its wide expertise, however, would have a chilling effect on
unions considering exercising their right to strike, and without that
power or potential power, convincing workers of the benefits of
joining unions. A decision that lets businesses shop for sympathetic
state courts rather than being bound by the NLRA would also mean that
a union would have to think twice before risking a strike and
potentially being subject to a state court imposing substantial
financial damages on it.

A recent Gallup poll showed that 58 percent of Americans
“disapprove” of the job the Supreme Court is doing—the highest
disapproval rating for the Court since Gallup began tracking this in
2000. If SCOTUS in its current session proceeds to limit workers’
rights, block President Biden’s student loan forgiveness program,
and even potentially uphold the “independent state legislature
doctrine” giving state legislatures sole jurisdiction over federal
elections, support for reforming the Court, even by adding more
justices, will almost surely increase. One of America’s largest
unions, the SEIU, has called for adding four justices to the Court,
indicating a growing understanding within labor that their power is
tied to unpacking the Court’s right-wing majority. Will the Biden
administration and congressional Democrats fight for such reforms or
continue to uphold an outdated institutionalism and settle for a
“muddy middle”?

Miles Mogulescu is a writer, entertainment attorney, and producer. He
has written hundreds of articles for HuffPost, Common Dreams, and
other publications, and has appeared as a guest commentator on MSNBC.

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* right to strike
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