Supreme Court Poised To Weaken Workers’ Right To Strike

Last Tuesday, the Supreme Court heard oral arguments in Glacier Northwest v. International Brotherhood of Teamsters, the outcome of which could have severe implications for workers’ right to strike across the country. Based on the questions during oral arguments, it is likely that the conservative justices will continue to eviscerate workers’ rights and overturn a 60-year-old rule that prevents employers from suing unions for workers exercising their fundamental right to strike.  The outcome of this case could severely undermine the power of workers in this country to fight for fair wages and safe working conditions.  

In this case, drivers of cement mixing trucks went on strike, frustrated with the collective bargaining agreement negotiations with their employer Glacier Northwest, a Seattle-based ready-mix concrete company. Drivers went into work and loaded their trucks with cement. Shortly thereafter, the drivers drove their trucks back to the company’s headquarters and walked off the job. The drivers took precautions to make sure that the remaining cement in the trucks would not harden. However, the company was unable to deliver some of the remaining cement, causing it to spoil. After a week on strike, the parties reached an agreement for a new contract.  

The basic issue in the case boils down to who gets to decide what kind of economic hardships union members may legally impose on their employer during a strike. The Court will have to decide whether it should be the National Labor Relations Board (NLRB) — the federal agency staffed with experts in labor policy and charged with enforcing U.S. labor law — or state courts judges that set the standards on this question. 

In the United States, employers have traditionally wielded far more power than workers, with the ability to fire employees at will and inflict severe economic hardship without consequences. Workers can balance the scales by unionizing and demanding better working conditions, wages, and benefits — raising the standards for all workers across the country. The right to strike is the most fundamental right workers have in negotiating with employers; often, the mere threat of a strike brings employers to the bargaining table in the first place. Weakening this right will shift the power back in favor of employers.  

The NLRB typically has jurisdiction over what worker conduct is protected by federal law under the National Labor Relations Act (NLRA). The NLRB has significant expertise in setting parameters for what constitutes reasonable conduct during a strike, having heard thousands of these types of cases. If the NLRB determines that workers have engaged in unreasonable conduct, such as committing acts of vandalism or violence during a strike, the employer can then sue the workers for damages.  However, since the entire point of the strike is to cause some degree of economic harm to the employer as a negotiating tool, the NLRB has held that the mere incidence of an employer losing money during a strike does not constitute unreasonable conduct.  

In this case, Glacier sued the workers’ union in state court to recover damages for the cement they lost during the strike under state law. Glacier claimed that the union chose to begin the strike after the cement was loaded into the trucks to maximize the economic harm suffered by the company. The state supreme court concluded unanimously that it was not appropriate to apply state tort law because the labor dispute was governed by the federal NLRA. Ultimately, the NLRB found that the workers’ conduct in this case was protected under the NLRA.  

The Supreme Court has been tasked with determining whether the NLRB’s determination is enough to protect the union from the employer’s lawsuit in state court. If, as expected, the conservative majority rules in favor of Glacier, it will circumvent the NLRB’s authority to protect workers in such cases. Workers across the country could be held liable for economic hardship their employer suffers during a strike, making it harder for workers to organize unions and collectively bargain.

Workers already risk their paychecks when they walk off the job to go on strike. Should they face even more severe economic consequences, such as lawsuits from their employer, workers may be less likely to join a union or go on strike in the first place. Furthermore, the opinion could be written to gut the NLRB’s power to set nationwide standards regarding what constitutes reasonable behavior during a strike, meaning that the strength of a worker’s rights would depend largely on what state they live in and, thus, the degree to which their state courts have already been seized by anti-worker interests.  

Throughout the oral argument, it was also abundantly clear that none of the justices — including any of the Democratic-appointed justices — is an expert in labor law. This reflects a greater problem on the federal bench, considering a vanishingly small number of federal judges have backgrounds in organized labor or economic justice fields. AFJ published a report last summer, entitled “Economic Justice, Judges, and the Law” that details the lack of professional diversity, specifically in the areas of labor law and economic justice fields, on the federal bench. Judges with experience in these areas understand the economic realities of life for workers and can help ensure that the courts are a fair forum for everyone rather than a tool for exacerbating income inequality. Now that Democrats have an extra seat in the Senate, it is time for the Biden administration and the Senate to push forward judicial nominees with labor-side experience.  

What the workers in this case did while on strike, in the context of labor law jurisprudence, is very typical — which has led some to suggest that the anti-union Roberts Court is only taking this case to continue its crusade against unions in this country. Ultimately, if the Court goes against precedent to harm workers, the decision won’t be based on the law at all; it will be a political decision made by the conservatives on the Court to undermine worker power, skewing the scales of justice even more firmly in favor of the rich and powerful. 

Jeevna Sheth is a Dorot Fellow at Alliance for Justice.