#HotLaborSummer: The Right to Strike and the Supreme Court’s Recent Challenge to Organized Labor
September 2023 | Floyd Velasquez (Associate Editor)
While many Americans are quick to adjust to the pace of societal advancement, the American workforce is not as prompt in adapting to society’s myriad of changes. Rapid technological advancements, coupled with the growing wage disparity between employers and employees, have sprouted issues that continue to plague the workforce. However, in attempts for these issues to be remediated, workers have left the workplace doors and found their way into the picket lines and are leaving demands atop many CEO’s desks, as workers have collectively organized to demand change. This past summer, organized labor has reclaimed its spot at the forefront of the American Agenda. Many labor unions, from the United Auto Workers to the Writers’ Guild of America, have gathered their members together in a fight for a fair workplace. However, amidst the many strikes that erupted over the summer of 2023, the Supreme Court decided on a case that holds the potential to upend organized labor, and erode the right to strike.
What does the 40-hour work week and a labor-less childhood have in common? They both can trace their origins to organized strikes. [1] [2] Striking, defined as an “organized and intentional stoppage or slowdown of work by employees”, is intended to result in employers reaching demands to better the conditions of work or the workplace overall. [3] The right to strike was born out of the National Labor Relations Act, which was passed by Congress and signed into effect by President Franklin D. Roosevelt in 1935. [4] Introduced by Senator Robert F. Wagner in the previous year, the act enshrines not only the rights of employees to form and join unions, but obligates employers to “collectively bargain”, or negotiate contracts, with them as well. [5]
In addition, the act also makes clear distinctions between what makes a strike lawful and unlawful. The lawfulness of a strike typically depends on the “object”, or the purpose of a strike. There are two objects in which a strike can be categorized as lawful: “economic” strikers or “unfair labor practice” strikers. [6] “Economic” strikers are those whose object of their strike is for the purpose of obtaining an “economic concession,” which are economic benefits that employers yield to their employees as a result of a strike, typically coming in the form of an increase in wages, change in work hours, or better work conditions. [7] On the other hand, “unfair labor practice” strikers strike with the object of protesting an unfair labor practice, such as coercion or discrimination, that has been committed by their employer. [8] Outside of these two classes of lawful strikes, there are many different instances in which a strike is deemed unlawful. Strikes that counter the purpose of the two lawful strike categories, like a strike that is in favor of an unfair labor practice for example, are automatically unlawful. [9] In addition, strikes that violate a “no-strike” provision of a contract, that do not provide a minimum 10-day written notice to the Federal Mediation and Conciliation Service when protesting a health care institution, or aim to terminate or change an existing contract, are all examples of unlawful strikes. [10] An unlawful strike is also one in which strikers engage in misconduct throughout the course of their strike, such as blocking people from entering a struck plant, threatening violence against non-strikers, attacking management representatives, or damaging company property. [11] This specific unlawful element, striker misconduct, became the point of contention in the Supreme Court this past summer in Glacier Northwest v. International Brotherhood of Teamsters Local No. 174, creating complications to the right to strike.
In the summer of 2017, a bargaining agreement had expired between Glacier Northwest and their truck drivers’ union, the International Brotherhood of Teamsters Local Union No. 174. [12] In attempts to reach a new deal, negotiations went awry, prompting the union to go on strike on August 11th, 2017. [13] Glacier Northwest, a Washington-based company, sells batches of ready-mix concrete which the company then sends their truck drivers out to deliver in special trucks that hold the batches in rotating drums to prevent concrete from hardening. On that day, the truck drivers’ union agent signaled a work stoppage, prompting at least 16 drivers to return from their deliveries, leave their fully-loaded trucks, with the drums still spinning, and walk off the job. Glaciers then enacted emergency protocol, relying on nonstriking employees to unload the concrete and store it in specially-built bunkers, but the concrete had hardened despite their efforts and became useless. Glacier Northwest then sued the union for damages in both trial courts and the Washington State Supreme Court, both of which wrestled with one basic question: Does the National Labor Relations Act supersede state-court lawsuits against a union, protecting their right to intentionally destroy property while on-strike? While the lower courts answered in the affirmative, the Supreme Court decided otherwise.
Writing on behalf of the majority, Justice Amy Coney Barrett not only decided that the National Labor Relations Act (NLRA) does not preempt state-court lawsuits against a union from occurring, but takes the burden of decision upon themselves to decide the lawfulness of the strike misconduct – which ignores established precedent laid out in Garmon v. San Diego Building Trades Council (1959) that exclusively leaves this responsibility in the hands of the National Labor Relations Board (NLRB). [14] The opinion relies on specific language from the NLRA, which states that strikers who do not take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger, as a result of sudden work stoppage, are not protected under the NLRA. [15] If the facts put forth by Glacier Northwest are true, the majority finds that when the workers left their already-filled trucks, though concrete was still spinning in their drums, they had put Glacier Northwest’s property in foreseeable and imminent danger, as they knew the concrete is a product that can easily perish and can be usable only for a limited time in a truck’s rotating drum. Additionally, the majority asserts that despite the union being aware of the possibility that the concrete being left to harden in the trucks could pose serious damage to the delivery truck itself, they had coordinated a strike otherwise, further failing the “reasonable precautions” test. [16]
The majority also takes time to strike down some aspects of the Union’s submitted brief, in which they emphasize that the NLRA’s basic protection of the right to strike should “be given a generous interpretation,” and that “workers do not forfeit the Act’s protections simply by commencing a work stoppage at a time when the loss of perishable products is foreseeable.” [17] In regards to the union’s first point, the majority states that the union’s claim is an oversimplification of the NLRA, as they again use the “reasonable precautions” principle aforementioned in a way to affirm that striking as a way to support their own economic demands is simply not enough to shield them from consequence. [18] In refuting their second point, they state that the lifespan of wet concrete implies that it must be batched at a point when it is ready to be delivered, and that the drivers “prompted the creation” of the perishable product by reporting for duty, pretending that they would deliver the concrete, then walking off the job, which then put the trucks in harm’s way. [19] The union also mentions that the drivers had returned the trucks back to their facilities, and that all the drivers left the drums of their trucks still rotating, delaying the hardening process, and providing reasonable precaution. [20] The majority again, simply sees it differently – they claim that refraining from stealing an employer’s vehicle does not indicate reasonable precaution, and that the rotating drums prevent hardening for a limited time, not indefinitely, still falls short from passing their test.
In concurring opinions, Justices Samuel Alito and Clarence Thomas write in reference to the principle laid out in Garmon, which lays out the burden in which the Court has taken in this case’s decision of the facts of the strike to specifically be the responsibility of the NLRB – the “Garmon preemption”. They go as far to say that Garmon should be revisited, aiming to remove the jurisdiction in which the NLRB has to be the primary arbiter in situations involving the lawfulness of strike misconduct.
It is this “Garmon preemption” in which Justice Ketanji Brown Jackson firmly grounds her dissent. Justice Jackson begins by affirming the lack of scope in which the majority has in this case, as Garmon asserts that a General Counsel, who generally supervises the NLRB’s processing of cases, [21] in filing a complaint to the NLRB, is reason enough to assume that a union’s conduct is “at least arguably protected by the NLRA.” [22] Where there is a complaint from the General Counsel, (as there is one in this case), any court should retire their evaluation. [23] Justice Jackson claims that this “Garmon preemption” prevents any right that the Court has to insert themselves as they did in the majority opinion in the first place, further stating that the Court “inappropriately weighing in” on this case has caused the majority to misapply the Board’s cases in a way that impedes “the Board’s uniform development of labor law and erodes the right to strike.” [24] Interestingly, Justice Jackson goes on to highlight the passage of the NLRA and its protections, which “marked a fundamental change in the Nation’s labor policies,” putting an end to the days when union activity was viewed as “a species of conspiracy” that wedged conflict between labor and management, and birthing the National Labor Relations Board, a “specific and specially constituted tribunal” in the process. [25] By emphasizing the integrity of the NLRB, she not only implies the special importance of the Board, but recognizes that their power is specifically granted to them, and not the courts – even the Supreme Court. In evaluating the perishable nature of the concrete as it pertains to the timing of the work stoppage, Justice Jackson looks to Glacier Northwest’s own submissions in Washington’s state court, which confirmed that the union had instructed the drivers to return their trucks back to the company premises with the concrete-filled drums still running once the strike had begun – precautions which provided remaining employees and management with “sufficient time” to address the situation and prevent harm to their property. In regards to the majority’s conclusion that the workers had “prompted the creation” of the perishable product by pretending as if they were going to perform their job responsibilities, Justice Jackson highlights their primary job responsibility, delivering wet concrete, calling the timing “unremarkable” as that is the nature of their responsibilities, and the perishable nature of the concrete did not give reason for the the employes to strike at any other time. [26] In Justice Jackson’s view, what Glacier Northwest seeks to do in this case is to shift the onus of protecting the employer’s property from damage or loss as a result of a strike unto the striking workers, beyond the “reasonable precautions” principle. [27] She underscores the fact that not only does this action undermine the intent of Congress in their vesting of power to the National Labor Relations Board, but that this also sets a “significant burden” on the right to strike. Justice Jackson writes, “Workers are not indentured servants, bound to continue working until planned work stoppage would be as painless as possible for their master. They are employees whose collective and peaceful decision to withhold their labor is protected by the NLRA even if economic injury results.” [28]
Labor justice in a post-Glacier legal landscape is not entirely secure. As Justice Samuel Alito and Justice Clarence Thomas provide ample support in their concurring opinion, an end to the “Garmon preemption” may be imminent. If the Supreme Court were to revisit Garmon, there is no assurance that the preemption – one of the powerful legal provisions that gives the National Relations Board their distinctive duty – would stay standing, eroding the power of the NLRB, a tribunal that has consistently stood at the forefront of issues related to organized labor which has protected the legal sanctity of the National Labor Relations Act, the creed in which the the right to strike originates. Furthermore, the overextension of the Court in which Justice Jackson centers her dissent suggests that the heavy hand in which they used to decide the matter of this case signals precedent for the Supreme Court to not put considerable respect on the decisions of Congress, nor on the integrity of administrative bureaucracy as they both stand today.
Sources
“Haymarket Affair: Topics in Chronicling America: Introduction.” Introduction - Haymarket Affair: Topics in Chronicling America - Research Guides at Library of Congress.
Schuman, Michael. “History of Child Labor in the United States—Part 2: The Reform Movement.” U.S. Bureau of Labor Statistics, January 2017.
“Strike.” Cornell Law School. Accessed September 25, 2023.
“1935 Passage of the Wagner Act.” National Labor Relations Board. Accessed September 25, 2023.
“1935 Passage of the Wagner Act.” National Labor Relations Board. Accessed September 25, 2023.
“The Right to Strike.” National Labor Relations Board. Accessed September 25, 2023.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Glacier Northwest, Inc. v. International Brotherhood of Teamsters, 598 U.S. 21-1449 (2023)
Ibid.
Ibid.
Ibid
Ibid
Ibid.
Ibid.
Ibid.
Ibid.
“Who We Are.” National Labor Relations Board. Accessed September 25, 2023.
Glacier Northwest, Inc. v. International Brotherhood of Teamsters, 598 U.S. 21-1449 (2023)
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.