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Will SCOTUS Revoke the Right To Strike?

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.

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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.