Labor Marjorie Cohn Supreme Court Union Wave

The Supreme Court Is About to Eviscerate the Right to Strike

The court will likely rule in “Glacier Northwest” that the union’s strike activity isn’t protected by federal labor law.
The rear of the Supreme Court Building (Todd Martin / Flickr)

By Marjorie Cohn / Truthout

The right to strike is on trial in the Supreme Court. At stake is a 64-year-old precedent that shields workers and unions from state lawsuits while they pursue unfair labor practice claims in the federal National Labor Relations Board (NLRB). If unions have to defend against costly lawsuits, it will likely discourage them from going on strike.

On January 10, the high court heard oral arguments in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174. The case involves a 2017 strike called by a Teamsters local against Glacier Northwest, a ready-mix concrete company in Seattle. Eighty-five truck drivers walked off the job. Sixteen of them whose trucks had been loaded with cement but hadn’t made their deliveries returned the trucks to the employer, leaving the trucks running to prevent the concrete from hardening. Glacier was unable to deliver all of the concrete and had to dispose of it. The trucks, however, were not damaged.

Glacier sued the union in state court for tortious destruction of its property and sought damages for the undelivered cement. In December 2021, Glacier’s lawsuit was dismissed by the Washington Supreme Court which ruled that the National Labor Relations Act (NLRA) preempts state court lawsuits.

The NLRB’s general counsel issued a complaint against Glacier in January 2022, alleging that the employer had committed unfair labor practices by retaliating against union members for their strike. That action is still pending.

Glacier Northwest “is about corporations using the legal system to try to deny workers their inherent power,” Teamsters General President Sean M. O’Brien said in a statement. With a right-wing pro-corporate supermajority on the Supreme Court, we can expect a decision that dilutes the power of workers to exercise their legal right to strike. In the 2018 case of Janus v. AFSCME and the 2021 case of Cedar Point Nursery v. Hassid, conservative majorities of the court handed down two anti-union rulings.


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Garmon Preemption

Under the precedent established in the 1959 case of San Diego Building Trades Council v. Garmon, an employer must obtain a ruling from the NLRB saying that the workers’ strike was not federally protected before it can file a lawsuit against the union in state court. If the NLRB decides the union’s action is “arguably” protected by the NLRA, the state court doesn’t have jurisdiction to hear the case. This is known as “Garmon preemption.”

The Teamsters maintain that Glacier’s lawsuit can only be heard in state court if the NLRB determines the union’s actions were not protected activity under the NLRA. It would not be protected union activity if the strikers failed to take reasonable precautions to avoid aggravated, imminent and foreseeable harm to Glacier’s property. The Teamsters argue that they did take reasonable precautions to protect the concrete.

The “Local Interest” Exception

Glacier is arguing that its lawsuit should not have been dismissed and should’ve been allowed to proceed in state court because the union’s conduct met the “local interest” exception to the preemption rule. According to Garmon, this narrow exception allows state tort claims “where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.”

Attorney Noel Francisco argued on behalf of Glacier that the Teamsters’ strike was more than “a mere stoppage of work” because “they put us in a position of putting that concrete in a vulnerable position precisely so they could abandon it.” Glacier accused the union of timing their strike so the mixed concrete would harden and become unusable, and said that intentional destruction of employer property meets the “local interest” exception.

No Intentional Destruction of Property

Teamsters lawyer Darin Dalmat told the court that the union “instructed the drivers to keep the drums running when they returned the trucks” so the cement wouldn’t harden. “Every day [Glacier] deals with leftover concrete,” Dalmat said. The union’s action did not constitute “intentional destruction” of Glacier’s property, he argued, noting that the Supreme Court has never determined that workers forfeited their legal rights “merely because perishables spoil.”

In dismissing Glacier’s state lawsuit, the Washington Supreme Court said the “local interest” exception to preemption did not apply because the destruction of the concrete did not amount to intimidation or violence.

The Biden administration filed an amicus brief “in support of neither party” and participated in oral argument before the court. Assistant Solicitor General Vivek Suri argued that the Washington Supreme Court shouldn’t have dismissed Glacier’s state court case, but he said that once the NLRB makes factual findings, the state court should adopt them.

Ketanji Brown Jackson proposed focusing on the intent of the union by asking, “Is the union engaging in conduct for the purpose of destroying the property of the factory, or is the union just striking, and if some of the property gets damaged because they’re walking away, that’s incidental, that’s totally protected?”

John Roberts noted that “there certainly is a distinction between economic harm to the employer, which is at the heart of many strikes anyway, and intentional destruction of property. The difference between the milk spoiling and killing the cow.”

The Liberals Appear Sympathetic to the Teamsters’ Argument

The three liberals on the court — Jackson, Sonia Sotomayor and Elena Kagan — appeared sympathetic to the union’s argument that the NLRB should hear the case first. Kagan said the board had handled thousands of these cases and “can fit a case like this into a broader map of strike conduct and what’s protected and what’s not.” Jackson echoed Kagan’s sentiment, noting that “our precedent recognizes congressional intent to allow the Board to develop a uniform body of law.”

Amy Coney Barrett was concerned about why the NLRB general counsel waited four years to file a complaint against Glacier. Suri replied that the delay was an anomaly because Glacier filed a separate allegation that the state court had to resolve.

Clarence Thomas and Neil Gorsuch asked a few questions of the lawyers, but Samuel Alito and Brett Kavanaugh asked none.

Given the political makeup of the court, it will likely rule that the drivers’ conduct was not protected by the NLRA and allow Glacier’s state court lawsuit to proceed.

Seventy-one percent of the U.S. public supports labor unions, the highest number since 1965. But the radical right-wing Supreme Court is about to deal a severe blow to the right to strike — the most potent weapon workers have to obtain justice.

“Workers in America have the fundamental right to strike, and American workers have died on picket lines to protect it. The ability to withhold your labor is the one powerful tool throughout the history of unionization that has ensured workers can improve their working conditions,” Teamsters President O’Brien stated.

The court will hand down its decision by the end of June 2023.


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Marjorie Cohn

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.

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