by Terri Gerstein | Economic Policy Institute
Last month, the Supreme Court handed employers one more cudgel to use in trying to squelch worker organizing: the threat of a state court lawsuit for economic harm.
In Glacier Northwest Inc. v. International Brotherhood of Teamsters Local Union No. 174, the Supreme Court upended decades of labor law precedent by allowing an employer to file a lawsuit for damages caused by spoilage of a day’s worth of product during a strike.
There’s been a lot of writing about the case, but here’s the upshot: Workers still clearly have the right to strike, but the court’s decision opens the floodgates for employers to weaponize financially burdensome state court litigation as a pressure tactic against workers and unions.
The decision could have been worse—it contains some guardrails that may help limit the damage and provide unions with defenses because it doesn’t allow lawsuits for economic harm under any and all circumstances. But it’s still a very harmful decision that hands employers another way to suppress worker organizing and reduce worker power.
As with abortion, guns, and so many other issues, Glacier shows just how out of touch the Supreme Court is with the national pulse. The opinion was issued amid a wave of union organizing and worker action not seen in decades, including at household-name companies like Starbucks, REI, and Kellogg’s.
Television and film writers—members of the Writers Guild—had been on strike for a month. Public opinion of unions is the highest it’s been in my lifetime, and a majority of workers surveyed say they’d join a union if they could.
However, only around 6% of private-sector workers are unionized. Our weak and outdated labor laws make it terribly hard to unionize, and employers routinely violate these laws by firing, threatening, and otherwise retaliating against workers who try to exercise their rights.
This context makes last week’s decision even worse; it’s enraging and tragic that the Supreme Court has once again put its finger on the scale in favor of corporate America.
So, what happened in this case?
Workers for Glacier, a corporation that sells and delivers quick-dry concrete, went on strike during an impasse in negotiations after their prior contract—with its no-strike clause—expired.
Once the strike started, drivers returned to the company parking lot, where they left the trucks running with the drums that contain the concrete still turning, to avoid drying the concrete and damaging the trucks.
Although the strike was predictable, Glacier had no contingency plan and scrambled to remove the concrete from the trucks’ drums. The trucks were unharmed, but some concrete was unusable. Glacier filed a tort lawsuit against the union in Washington state court for financial damages caused by the strike.
Typically, state courts can’t get involved in matters covered by our federal labor law—the National Labor Relations Act (NLRA)—because Congress intended to create a uniform national labor policy.
There are a few exceptions to NLRA preemption, though.
Glacier claimed that the destruction of a day’s worth of concrete was serious enough to fall into one of those exceptions, for situations in which matters are deeply rooted in “local feeling and responsibility,” such as if workers intentionally vandalize or destroy company property.
The Supreme Court’s majority decision in Glacier charted a new path, holding that the union should, in fact, be subject to an employer tort lawsuit because of financial losses caused by the spoilage of the concrete. They focused on the timing of the strike: the union didn’t strike immediately but began working, mixing concrete and starting deliveries.
And although the trucks were unharmed, the court focused on the potential for damage to trucks and differentiated the situation from analogous cases when food products had spoiled during a strike.
This decision has deeply harmful consequences for workers’ right to strike: If workers or their unions could be sued any time a product went bad during a strike, or when a strike’s timing was especially damaging, the right to strike would be illusory for many—perhaps most—workers.
For example, every aspect of our food chain involves perishable products, from food manufacturers to supermarkets to restaurants. Hospitality industry employers may be unusually vulnerable to strategically timed strikes. Even without employers filing a lawsuit, the threat of litigation is likely to be considered in unions’ calculations about whether, when, and how to strike.
The decision is not categorical, though. As noted above, it includes some guardrails, likely inserted by Justices Elena Kagan and Sonia Sotomayor, whose inclusion on the opinion is otherwise perplexing and has been the source of considerable speculation. (My guess: they joined to avoid an even worse decision by a different set of five justices.)
The opinion focuses on the potential harm to the trucks (which didn’t even happen) and that the workers themselves “prompted the creation of the perishable product” (the concrete) by showing up and letting the day’s work get started. Many striking situations, including those involving perishable products, may not fall into this category.
But what does it mean to “prompt the creation” of a perishable product? In Glacier, it was simply a matter of showing up and starting work, rather than striking at the break of dawn. Do writers create a perishable product if they go on strike mid-season, when a show’s plot has already thickened?
More starkly, when, exactly, could a food manufacturing worker go on strike? In any event, even though this language could limit unions’ liability, it’s always better not to be sued in the first place.
There should logically be some potential silver lining: Could relaxation of federal labor preemption open the door to worker tort lawsuits against an employer whose strategic timing of an adverse employment action causes unusual harm to workers?
Consider a company that fires a union supporter they know is eight months pregnant, or one who’s been recently diagnosed with a serious illness and is reliant on company health insurance. There’s a good-for-the-goose, good-for-the-gander argument that in a fair world could be employed to help workers. If such cases ever reached the Supreme Court, it’s unlikely they’d get a fair hearing, though, given the majority’s strong anti-worker leanings.
Overall, it’s a grim outcome for workers, with Justice Ketanji Brown Jackson as the lone holdout fully championing workers’ right to strike. In addition to fully grasping what was at stake, she also noted in her dissent that this matter and these kinds of matters should be handled by the National Labor Relations Board (NLRB), the federal agency with expertise in labor relations and charged with enforcing our labor laws.
Last week’s decision is also one more example of the Supreme Court rejecting the value of the administrative state: the justices muddled through their own thoughts about labor relations despite the existence of an entire agency with deep expertise in precisely that topic.
Untethered to the administrative process, last week’s case has the potential to lead to a massive uptick in worrisome tort litigation by employers against workers and unions that go on strike, and this is from a court whose majority is steeped in a conservative political movement that vilifies tort lawsuits.
The Supreme Court, once more, has thrown its considerable weight against working people. Every time the Court rules on cases related to workers or labor, it feels like Groundhog Day: glaringly clear, yet again, how urgently we need court reform, as well as labor law reform.
The Glacier decision is a totally inappropriate and damaging judicial assist to corporations and employers. But alone, it’s not likely to thwart the current momentum of workers seeking a voice on the job and a better deal.
As Service Employees International Union President Mary Kay Henry reminds us, workers in America still have the right to strike, a right that is “fundamental to our freedom as working people.”
The Supreme Court has made it harder, but they can’t take that right away.