By Conor Foley
At the end of the 2022-2023 Supreme Court term, the justices abridged the right to strike in an 8-1 decision allowing a concrete company to seek tort redress for economic loss caused by a strike.[1]
The dispute arose when employees of Glacier Northwest, a company that sells concrete, went on strike with wet concrete in their trucks, forcing the company to take emergency measures to prevent the concrete from hardening inside the trucks and damaging them.[2] The company managed to save all of the trucks, but suffered damages from lost concrete. To recover these lost damages, the company sued to recover.
The decision in Glacier Northwest turned on whether the workers deliberately destroyed the employers’ property by going on strike.[3] Incidental damage to perishable goods is protected. Affirmative steps to destroy property are not. If incidental harm is foreseeable and likely, however, the conduct might not be protected. Thus, poultry workers walking out of the factory while raw chickens were on the line was a protected action[4], while foundry workers walking out when the furnace was full of molten iron was not.[5]
In this case, the Court held that concrete’s tendency to harden as soon as it is mixed rendered damage to the trucks and the loss of the product imminent and foreseeable. The Union’s precautionary measure to return the trucks with the drums moving was not enough to create a protected action.[6]
Consequently, this decision may embolden employers to sidestep the NLRB by litigating in state courts. At oral arguments, Glacier’s counsel disclosed that the company preferred the court to the agency: “You know, frankly, we’d prefer not to be before an administrative agency where the agency is the judge, jury, and executioner. We prefer to be in a court system where we have a — a — a neutral judge and the potential for a jury.”[7] Following the Supreme Court’s decision, more companies may find themselves in court, the preferred forum for most business.
The ruling could reduce an employees right to strike, as employers are empowered to bring lawsuits to recover .[8]Wealthy employers will be able to wear down unions with legal fees, [9] and litigation over strike actions will be more common, which in turn will make strikes less likely.[10]
Commentators have already taken notice of several pro-corporate groups who filed amicus briefs in favor of the petitioner[11]. These included the Buckeye Institute, a “free market public policy think tank” and Coalition for a Democratic Workplace, which is an organization of businesses “united in concern about NLRB overreach.” The Buckeye Institute’s brief contended that affirming the Washington Supreme Court’s judgment would “make economic pressure a euphemism for vandalism.”[12] The Coalition for a Democratic Workplace claimed that unions are willing to engage in unlawful activity and that preemption would be “gifting unions an additional and unlawful weapon–the intentional destruction of property–while simultaneously removing an essential shield held by employers.”[13]
One pro-labor commentator analogized the right to strike with the right to abortion, noting that it took fifty years to overturn Roe v. Wade and suggested that this ruling could open the door to further whittling at the right to strike.[14]
Commentators on the right have also noted the possibility that the ruling could lead to more restrictions on the right to strike. Both the Federalist Society[15] and the Cato Institute[16] celebrated Justice Thomas’s concurrence, in which he “calls attention” to the “unusual” nature of Garmon’s “arguable” test and suggests that “in an appropriate case, [the Court] should carefully reexamine whether the law supports Garmon’s ‘unusual’ pre-emption regime.”[17] Citing himself, Justice Thomas went on to suggest a test to replace Garmon’s. “In doing so, I would bear in mind that any proper pre-emption inquiry must focus on the NLRA’s text and ask whether federal and state law ‘are in logical contradiction,’ such that it is impossible to comply with both.’”[18]
While the prospect of Garmon’s preemption regime being overturned is ominous for unions, and Justice Thomas’s concurrence raises that prospect, the Court ruled narrowly in this case. Garmon preemption has been rendered less certain and employers will likely take advantage of that, but it has not been overturned.
[1] See Glacier Northwest, Inc. v. International Brotherhood of Teamsters, 598 U.S. 771 (2023).
[2] Id. at 775.
[3] Id. At 780.
[4] Lumbee Farms Coop., Inc. v. NLRB. 850 F.2d 689 (4th Cir. 1988).
[5] NLRB v. Marshall Car Wheel and Foundry Co. of Marshall, Texas, Inc., 218 F.2d 409 (5th Cir. 1955).
[6] Glacier Northwest, 598 U.S. at 781.
[7] Transcript of Oral Argument, Glacier Northwest, Inc. vs. International Brotherhood of Teamsters. Retrieved at https://www.oyez.org/cases/2022/21-1449 (28:40).
[8] Ian Millhiser, The Supreme Court Deals Another Blow to Labor Unions, VOX (June 1, 2023), https://www.vox.com/scotus/2023/6/1/23745372/supreme-court-unions-labor-strike-glacier-northwest-teamsters-amy-coney-barrett.
[9] Id.
[10] Irina Ivanova, Supreme Court Ruling Deals Another Blow to Organized Labor, CBS NEWS (June 2, 2023), https://www.cbsnews.com/news/supreme-court-glacier-northwest-vs-teamsters-decision-ruling-labor-strike-limits/,
[11] Julia Rock, Corporate Pressure Groups Are Cheering On the Supreme Court’s War on Unions, JACOBIN (January 17, 2023), https://jacobin.com/2023/01/us-supreme-court-glacier-northwest-teamsters-union-busting-corporate-lobbying.
[13] Brief for Coalition for a Democratic Workplace as Amicus Curiae, p. 11, Glacier Northwest Inc., 598 U.S. at 778.
[14] Alexandra Bradbury, Unions Can Still Strike—Don’t Let the Supreme Court Tell You Otherwise, LABOR NOTES (June 1, 2023), https://labornotes.org/2023/06/unions-can-still-strike-dont-let-supreme-court-tell-you-otherwise.
[15] Alexander Thomas MacDonald, Is Glacier Northwest the Tip of the Iceberg?, FEDSOC BLOG (June 6, 2023), https://fedsoc.org/commentary/fedsoc-blog/is-glacier-northwest-the-tip-of-the-iceberg.
[16] Walter Olson, Glacier Northwest v. Teamsters: The Supreme Court Gets Concrete, CATO AT LIBERTY (June 1, 2023), https://www.cato.org/blog/glacier-northwest-v-teamsters-supreme-court-gets-concrete.
[17] Glacier Northwest, 598 U.S. at 782.
[18] Id.
