The Supreme Court handed down an absolutely confounding decision on Thursday, which will encourage employers to bombard their workers’ unions with lawsuits if those workers go on strike. The Court’s decision in Glacier Northwest v. International Brotherhood of Teamsters waters down a rule intended to protect workers from duplicative lawsuits that can drain their union’s finances.
That said, Justice Amy Coney Barrett’s majority opinion does contain some language limiting the scope of this victory for employers. It was joined by liberal Justices Sonia Sotomayor and Elena Kagan. And archconservative Justices Clarence Thomas and Samuel Alito both wrote separate opinions calling for the Court to hand a more sweeping defeat to striking workers.
Only Justice Ketanji Brown Jackson dissented, in an opinion that argued for maintaining longstanding protections for unions that have existed since the late 1950s.
In any event, Barrett’s Glacier Northwest opinion reads like it may be the product of a brokered compromise, where Sotomayor and Kagan agreed to sign on to an anti-union decision in order to prevent Thomas or Alito from assembling five votes for their more extreme positions.
That means unions are left with not the worst possible outcome — but still one that will significantly complicate their attempts to win fair contracts.
How this case should have been decided under preexisting law
Glacier Northwest involves unionized workers at a company that mixes and delivers concrete in its own fleet of mixing trucks. These workers allegedly timed their strike to begin after some of Glacier Northwest’s trucks were already filled with wet concrete, forcing the company’s non-union employees to race to dispose of the concrete before it hardened and did significant damage to the trucks.
Before Glacier Northwest, it was uncertain whether a union could time a strike in this way. On the one hand, one line of cases establishes that a union has a legal right to strike even if that strike will lead to the destruction of perishable goods. A decision by 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.
On the other hand, there are some cases establishing that striking workers cannot walk off the job at a time that could result in great damage to their employer’s equipment. Barrett’s opinion, for example, points to an appeals court decision involving workers who “abandoned their posts without warning ‘when molten iron in the plant cupola was ready to be poured off,’ even though ‘a lack of sufficient help to carry out the critical pouring operation might well have resulted in substantial property damage.’”
In any event, Glacier Northwest’s allegations against their striking workers fall somewhere in between these two extremes. Wet concrete does not present the same risks as molten iron, and it hardens relatively slowly so long as it remains in a mixing truck with a turning drum. As Barrett writes in her opinion, Glacier Northwest’s non-striking workers were able to successfully dispose of the wet concrete “over the course of five hours.”
That said, the Glacier Northwest case is not perfectly analogous to the cases involving perishable milk or cheese either. Unlike milk or cheese, concrete only becomes perishable once it is mixed. And the workers in this case did allegedly time their strike to occur after that mixing had taken place. As Barrett writes, “by reporting for duty and pretending as if they would deliver the concrete, the drivers prompted the creation of the perishable product.”
Before Thursday, however, the Court’s precedents laid out a very clear process for what should happen when there is uncertainty about whether a union or employer acted within the bounds of federal labor law. Under San Diego Trades Council v. Garmon (1959), when either a labor union or an employer engages in an activity that is “arguably” protected under that law, the NLRB must first decide if the activity was, in fact, protected.
If the NLRB concludes that a union acted within its legal rights, Garmon held that “the matter is at an end, and the States are ousted of all jurisdiction.” Alternatively, if the NLRB concludes that federal labor law does not protect a union’s actions, then the employer may pursue a lawsuit against the union in state court.
This rule protects unions (and, potentially, employers) from duplicative litigation. Without Garmon, a union might simultaneously win a decision in the NLRB holding that it had a right to strike, while also losing a lawsuit in state court claiming that a union acted unlawfully. That would mean twice the legal fees for the union, and a confusing mix of contradictory decisions that higher courts will eventually need to sort through.
And Garmon also ensured that disputes over federal labor law will be heard by a body that has far more expertise in that body of law than most judges. As Garmon explained, the NLRB is a “centralized administrative agency, armed with its own procedures, and equipped with its specialized knowledge and cumulative experience.”
Glacier Northwest, then, should have brought its complaint to the NLRB, which would have decided whether this particular strike violated the law. It did not, instead going straight to the courts, arguing that the union’s actions in this case weren’t even “arguably” protected by federal labor law.
The Court’s right flank would have gone even further than that, effectively destroying Garmon. Justice Thomas’s opinion suggested it should be overruled outright, while Alito’s opinion argues that all an employer needs to do to defeat Garmon is to accuse a union of attempting to destroy its property — regardless of whether that allegation is eventually proved in court.
Barrett’s majority opinion does not go that far, although it does impose some new limits on the Garmon rule.
What the Court just did to Garmon
The holding of Glacier Northwest is that this employer may pursue a lawsuit against its workers’ union in Washington state court before the NLRB determines whether this particular strike was protected by federal law. That’s a serious blow to Garmon. Indeed, the Court’s decision will lead to the very kind of duplicative litigation that Garmon was supposed to prevent.
Barrett reaches this conclusion by emphasizing both that the union’s alleged actions could have destroyed Glacier Northwest’s mixing trucks, and that it was fully aware of this risk. As she writes, the union’s alleged actions “put Glacier’s property in foreseeable and imminent danger.”
That said, her opinion also points to several relatively simple steps the union could have taken that might have placed it on the right side of the law. The union “could have initiated the strike before Glacier’s trucks were full of wet concrete — say, by instructing drivers to refuse to load their trucks in the first place” or it could have done more to inform the company that its workers would return their trucks to the company’s lot with wet concrete it will have to dispose of.
Barrett’s opinion also emphasizes that “the Union’s decision to initiate the strike during the workday and failure to give Glacier specific notice do not themselves render its conduct unprotected.” That suggests that the Garmon rule will still apply in cases where workers time a strike to coincide with, say, a busy period when the company stands to lose a lot of money if its workers do not perform their jobs.
Yet, despite this mitigating language, Glacier Northwest is still a significant loss for unions, in large part because it does not draw clear lines indicating when Garmon still applies and when it does not. Suppose, for example, that a single angry worker picks up a piece of their employer’s equipment and smashes it at the beginning of a work stoppage. Does this one worker’s wildcat action render the entire union vulnerable to litigation?
Similarly, imagine a company much like Glacier Northwest, except that this company is so busy that it always has at least one truck full of wet concrete being delivered to a client. At what point are this union’s workers allowed to strike? And, if they do strike, what are the precise precautions the union must take in order to protect the employer’s trucks?
Questions like these will need to be decided in future litigation — and the mere existence of this litigation will only undermine Garmon even more. Striking unions will now potentially have to litigate one case in the NLRB while simultaneously litigating a second case whose purpose is to determine whether their employer is allowed to sue them in state court.
That will make it much easier for well-moneyed employers to grind down unions with legal fees.