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This Is Not the End of the Supreme Court’s War on Labor

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 is called Glacier Northwest Inc v. International Brotherhood of Teamsters. At issue was a 2017 strike organized 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), it is supposed to stay out of 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.

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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.

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. Distributed by PARS International Corp.

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. He can be followed @ElieNYC.

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