SCOTUS guts right to strike

Associate US Supreme Court Justice Ketanji Brown Jackson poses for the official photo at the Supreme Court in Washington, DC on October 7, 2022. (Image via OLIVIER DOULIERY/AFP via Getty Images)

Supreme Court Justice Ketanji Brown Jackson stood alone as an unwavering champion of labor unions and the right to strike Thursday, as she dissented from the Supreme Court’s 8-1 ruling against cement truck drivers who went on strike in 2017.

The case, Glacier Northwest, Inc. v. International Brotherhood of Teamsters, was a dispute over the right of a concrete business to sue its unionized employees for damage caused to the company’s cement trucks after workers walked off the job. Glacier and its truck drivers –represented by the International Brotherhood of Teamsters Local 174– were in a stalemate during contract negotiations when the drivers went on strike. The union says it instructed employees to leave the trucks’ cement drums spinning as they walked out so as to minimize damage to the vehicles. Glacier, however, says 16 trucks were damaged due to hardened cement — and that the costly result had been the result of intentional sabotage by its disgruntled workers.

Glacier sued Local 174 for the damage to the trucks, and Local 174 sued Glacier in a separate case alleging that it violated federal labor law by retaliating against union members for the strike.

Justice Amy Coney Barrett wrote a 12-page lead opinion for the court, which was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh. Barrett concluded simply that the union’s actions both destroyed Glacier’s concrete and “posed a risk of foreseeable, aggravated, and imminent harm to Glacier’s trucks.” Taken together, Barrett found these factors rendered the strike unprotected, thus exposing Local 174 to liability.

Jackson, though, was stalwart in her her support of workers’ right to strike.

“The right to strike is fundamental to American labor law,” began Jackson in her 27-page dissent. The justice went on to explain that Congress codified this right in the National Labor Relations Act (NLRA) and protected it with the creation of the National Labor Relations Board (NLRB).

Jackson chastised her fellow justices for “falter[ing]” by abandoning a half-century of precedent “scrupulously guard[ing]” the authority of the NLRB.

The Joe Biden appointee berated her peers for “try[ing] its own hand” at interpreting NLRB precedent and making related factual determinations that will lead to chaotic consequences.

“And in the course of inappropriately weighing in on the merits of those questions at this stage, the majority also misapplies the Board’s cases in a manner that threatens to both impede the Board’s uniform development of labor law and erode the right to strike,” Jackson warned. That danger was precisely the reason Congress created the NLRB, said Jackson, articulating an argument whose parallel might well be applied to other federal agencies in response to the current Court’s hostility toward the “administrative state.”

Jackson argued that the NLRA’s primary purpose was to protect the rights of workers to strike and that sorting out “protected” versus “unprotected” activities during a strike “is a legally and factually complex task” reserved for the agency with specialized labor knowledge. When the Supreme Court took a crack at doing this work itself, said Jackson, it failed, because “the majority seems to misunderstand [the application of legal precedent] in the context of this case.”

Jackson schooled her fellow justices on the way the NLRA was meant to work. Costly damage as a result of a strike is nothing new, she argued. Rather, “Congress was well aware that organized labor’s exercise of the right to strike risks harm to an employer’s economic interests.”

Despite the potential for damage to an employer, “Congress protected that right anyway,” said Jackson.

“In fact, the threat of economic harm posed by the right to strike is a feature, not a bug, of the NLRA,” she wrote. “The potential pain of a work stoppage is a powerful tool, and one that unquestionably advances Congress’s codified goal of achieving ‘equality of bargaining power between employers and employees.””

Jackson allowed that the right to strike, while central to the NLRA’s goal, is “not unlimited,” and gave examples of unannounced strikes in healthcare settings as an example. Jackson acknowledged that striking employees would not have legal protection if they took an “affirmative step to destroy or seize the employer’s property,” or if they failed to take “reasonable precautions” to avoid “imminent, aggravated injury,” but likened perishable concrete to spoiled milk or cheese — results that do not generally render a strike “unprotected.”

Jackson unequivocally found that, “There is also no duty to take reasonable precautions to prevent this kind of economic loss, which—standing alone—posed no risk to persons, premises, or equipment, let alone a risk of aggravated harm.”

Jackson called the fact that drivers could have “saved” the concrete by delivering it to the intended customers “beside the point.” Holding employees liable for incidental loss of perishable goods would undercut their right to strike in the first place. The majority, by contrast, focused on the damage to the trucks — as opposed to the damage to the hardening concrete; Jackson said such an analysis is “complex” and “nuanced,” and that the strike involved was at least “arguably” protected.

The justice refused to concede that striking while trucks were filled with wet concrete was an “aggravated” injury for Glacier. Rather, she said the drivers’ timing was “unremarkable.” As a concrete company, Glacier engages in a “risky business,” said Jackson, but that hardly creates “some obligation on the drivers to strike in the middle of the night or before the next day’s jobs had started.”

Jackson used a footnote to call out conservative Justice Samuel Alito for the hard line take articulated in his brief concurrence joined by Justices Clarence Thomas and Neil Gorsuch. Alito, rarely a friend to federal authority, said that states are within their rights to subject unionized workers to liability for intentionally destroy an employer’s property.

Justice Clarence Thomas also wrote a short concurrence which was joined by Gorsuch. In it, Thomas urged the Court to rethink the framework by which it analyzes conflicts between state law and the NLRA. While the applicable precedent did not need to be disturbed in the Glacier case, Thomas suggested the Court consider upending it in an “appropriate” case in the future.

You can read the Court’s full opinion here.

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