The Supreme Court hears a case this week that endangers workers’ ability to strike

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The Supreme Court hears a labor dispute on Tuesday involving striking truck drivers who walked off the job to try to secure a better contract from their employer, a company that provides premixed concrete for construction projects. Yet, while Glacier Northwest v. International Brotherhood of Teamsters is a fairly unremarkable case, the stakes for unionized workers could be enormous.

Glacier Northwest, the employer beyond this case, seeks to upend a more than 60-year-old rule protecting unions from lawsuits when workers exercise their federally protected right to strike.

It’s an audacious ask, and the case could potentially be decided more narrowly. But the two-thirds of the Court that was appointed by Republicans has shown extraordinary hostility toward unions in the past. So we can’t dismiss the risk that the Court hands down a maximalist decision that upends the balance of power between employers and labor unions.

The case hinges on a rule protecting workers’ right to strike, and laying out how companies can claim that this rule does not apply to a particular strike.

The Teamsters, the union in this case, allegedly timed a 2017 strike so that it would begin after some of Glacier Northwest’s mixing trucks were already filled with concrete, forcing the company’s non-union employees to race to dispose of this material before it hardened in the trucks. But the company was able to remove this wet concrete from the trucks before they were damaged, and there are a wealth of cases establishing that workers may strike even if doing so will cause some of their employer’s product to spoil.

In one case, for example, the National Labor Relations Board (NLRB) — a kind of quasi-court that hears disputes between unions and employers — sided with milk truck drivers who struck, even though their strike risked spoiling the milk before it was delivered to customers. Another case, handed down by a federal appeals court, reached a similar conclusion regarding striking cheese workers.

That said, there are also some cases establishing that workers may not walk off the job at a time that could result in truly egregious damage to their employer’s business. In one such case, for example, a federal appeals court ruled that foundry workers who work with molten lead could not abruptly walk off the job and leave the lead in a state where it could melt the employer’s facilities or injure other workers.

In any event, the Supreme Court’s decision in San Diego Trades Council v. Garmon (1959) lays out the process that employers must use if they believe their workers timed a strike so recklessly that the union should be held liable. In nearly all cases, the employer must first obtain a ruling from the NLRB establishing that their workers’ strike was not protected by federal law. Only then may they file a lawsuit against the union.

The employer in Glacier Northwest, however, wants the Supreme Court to water down Garmon considerably, potentially enough to render that decision toothless.

If that happens, it would be a tremendous blow to workers. One important reason the Garmon process exists is that it shields unions from lawsuits that could drain their finances and discourage workers from exercising their right to strike — after all, that right means very little if well-moneyed employers can bombard unions with lawsuits the union cannot afford to litigate.

To understand the Glacier Northwest case, it’s helpful to first understand two foundational principles of US labor law.

The first is that the right to strike is protected by federal law. The National Labor Relations Act (NLRA) provides that workers have a right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” A separate section of the NLRA states that the “right to strike” shall be “preserved.”

The second principle is that federal law trumps state law when the two conflict. This principle is stated in the Constitution itself, which provides that “Laws of the United States … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Taken together, these first two principles establish that any state law that infringes on the federal right to strike must yield to the NLRA. That typically includes state tort laws that permit employers to sue unions that organize strikes, even if that strike does some economic damage to the company. After all, placing economic pressure on an employer to extract pro-worker concessions from that employer is the entire point of a strike.

As a practical matter, however, the exact scope of the right to strike (along with many other rights protected by the NLRA) is ill-defined. As noted above, federal law does typically protect strikes that cause some of an employer’s product to be spoiled or otherwise destroyed. But it does require striking workers to take some reasonable steps to protect their employers’ property in extreme cases, such as the case involving molten lead.

Many decades ago, this uncertainty created a difficult problem for federal courts. Frequently, workers and employers would allege that some state law trampled on their rights under the NLRA, and it wasn’t immediately clear whether they were correct — to the Supreme Court’s consternation.

In Garmon, the Court announced a process that would enable the judiciary and federal labor officials to sort out these cases. Under Garmon, when either a labor union or an employer engages an activity that is “arguably” protected by the NLRA, then the case must first be heard by the National Labor Relations Board.

As Justice Felix Frankfurter explained in Garmon, the NLRB is a “centralized administrative agency, armed with its own procedures, and equipped with its specialized knowledge and cumulative experience.” Because this board specializes in disputes arising under federal labor law, Frankfurter reasoned, it was better equipped than a federal or state judge to sort through difficult questions about which strikes (and other labor actions) are protected by the NLRA.

If the board determines that a union’s or employer’s action is protected by the NLRA, then, under Garmon, “the matter is at an end, and the States are ousted of all jurisdiction.” Conversely, if the board determines that the NRLA has nothing to say about a labor dispute, then state courts may hear that dispute and potentially order one party to the dispute to compensate the other for violations of state law.

Under Garmon, there should be little doubt that Glacier Northwest must be heard first by the NLRB before the employer’s suit against its truck drivers’ union can go forward. Although there is some legal uncertainty about just how much risk of property damage striking workers can impose on their employer before that strike loses its federal legal protections, Garmon doesn’t require the union to show that its actions were protected by the NLRA. It only requires it to show that its actions were “arguably” protected, and that’s a very low bar.

Moreover, as the union points out in its brief to the Supreme Court, the NLRB’s general counsel — an official who acts similarly to a prosecutor when companies or unions are accused of violating federal labor law — has already issued formal complaint against Glacier Northwest, claiming that it violated the NLRA when it took action against some of the striking workers. So one of the nation’s top labor officials has already concluded that the union’s actions were protected by the NLRA. That, alone, should be enough to establish that the unions actions were, at least, “arguably” protected by federal law.

Nevertheless, the company proposes several modifications to Garmon that would allow it to bypass the NLRB. Its primary argument is that a union may not intentionally time a strike in order to cause damage to a company’s property, but it also claims that Garmon relied on an “idiosyncratic approach” — suggesting that maybe the decision should be abandoned or strictly limited.

The Garmon decision was primarily rooted in the Supreme Court’s belief that someone has to sort through labor disputes to determine which ones cannot be heard by state courts, and that the NLRB, as the federal agency with the most expertise in labor management disputes, is better suited than anyone else to perform this task.

But it’s also a very beneficial decision for labor unions, because it limits employers’ power to harass unions with lawsuits in state court. As the text of the NLRA itself acknowledges, there is often tremendous “inequality of bargaining power” between workers and employers. Absent Garmon, many unions would be reluctant to strike, because doing so could lead to financially disastrous litigation.

But there are reasons to doubt that this Court, with its supermajority of Republican appointees, will follow the labor-friendly rule laid out in Garmon. The first is this Court’s record of hostility to unions.

In Cedar Point Nursery v. Hassid (2021), for example, the Court voted on party lines to strike down a nearly half-century-old California regulation that allowed union organizers to briefly enter agricultural worksites in order to speak to farmworkers. The Constitution permits the government to require businesses to allow unwanted persons on their property — think of laws requiring restaurants to admit health inspectors, or requiring factories or mines to admit safety inspectors — but Cedar Point invented a new rule that excludes union organizers.

Similarly, in Janus v. AFSCME (2018), the Court voted along party lines to cut off an important source of funding for public sector unions. Under Abood v. Detroit Board of Education (1977), these unions were allowed to charge “agency fees” to non-members in order to reimburse the union for services it provides to these non-members, such as bargaining on their behalf to secure pay raises. Janus overruled Abood, effectively forcing unions to provide these services to non-members for free.

The other reason unions should worry about how this Court will decide Glacier Northwest is the Court’s current Republican majority is very hostile to arguments that it should defer to other institutions, like the NLRB, which have specialized expertise that the justices do not possess.

Until very recently, one of the fundaments of federal administrative law — the body of law governing federal agencies and their power to issue binding regulations when authorized to do so by Congress — was that courts should typically stay away from questions about how these agencies should regulate.

Thus, in Mistretta v. United States (1989), the Supreme Court held that federal judges should normally defer to Congress’s decision to delegate regulatory powers to a federal agency, rather than questioning the amount of power Congress gave to that agency. And, in Chevron v. National Resources Defense Council (1984), the Court also held that judges should ordinarily defer to agencies when there is doubt about whether a federal law authorizes that agency to regulate.

As Chevron explained, “judges are not experts” in the matters regulated by agencies, so they should be reluctant to second-guess decisions made by officials who know vastly more than they do.

But this sort of humility is absent in the Court’s current majority. Indeed, the Court’s GOP supermajority has largely replaced cases like Mistretta and Chevron with a judicially created doctrine known as “major questions,” which effectively permits the justices to veto any regulation they do not like on the grounds that it is too ambitious.

There are many other examples of this Court abandoning or likely planning to abandon longstanding principles of judicial humility in favor of new legal rules that centralize power within the Supreme Court, but there’s no need to belabor this point. This shift toward judicial supremacy matters for unions because, again, Garmon was rooted in the proposition that a federal agency with subject-matter expertise on labor management disputes should get the first crack at resolving those disputes. And the current Court has shown very little sympathy for past decisions arguing that the justices should be mindful of the views of expert institutions.

And that means that this Court could open labor unions up to lawsuits that they haven’t had to worry about for more than 60 years.

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