The Right To Strike In America Is On Trial Today

“Workers get to pick when they go on strike.” — Teamsters lawyer Darin M. Dalmat arguing before the U.S. Supreme Court this week. Above: Students and Teachers strike outside the New School in New York City in November. Photo By Joe Maniscalco

By Steve Wishnia

The Supreme Court heard a three-headed argument Jan. 10 in a case on whether employers have the right to sue unions in state court for property lost or damaged during a strike.

The case, Glacier Northwest v. International Brotherhood of Teamsters Local 174, involves Glacier Northwest, a Seattle concrete company. After it had to throw out several truckloads of concrete during a 2017 strike by drivers, it sued Local 174 for damages, accusing the drivers of intentionally destroying its property. The Washington Supreme Court dismissed the suit, ruling that because the drivers’ conduct was “arguably protected” under the federal National Labor Relations Act, the company had to wait until the National Labor Relations Board [NLRB] ruled on whether the union’s actions actually were protected conduct.

“The right to strike is on trial today at the U.S. Supreme Court,” AFL-CIO President Liz Shuler said in a statement. “Glacier Northwest is actively seeking to undermine this fundamental right, arguing that it is entitled to sue the union in state court and seek monetary damages for undelivered concrete product as the result of truck drivers striking for fair wages and better working conditions. Their argument flies in the face of long-standing precedent.”

The legal and factual questions turn on two issues. First, the Washington court relied on the Supreme Court’s 1959 decision in San Diego Building Trades Council v. Garmon, which set the precedent that if strikers’ conduct is “arguably” protected, the NLRB’s jurisdiction pre-empts that of state courts. Second, while intentional property damage such as breaking windows is not protected conduct, the NLRB has held several times that “incidental” damage, such as the loss of perishable goods during a strike, is protected.

‘Intentionally’ Damaged?

Glacier Northwest’s lawyer, former solicitor general Noel J. Francisco, argued that the strikers had intentionally damaged the concrete by leaving the trucks, so their actions were clearly not protected. He also said that the Washington court’s ruling meant that state courts were wrongly “ousted of jurisdiction,” as tort lawsuits are part of their purview.

“If the complaint alleges clearly unprotected conduct and the only issue is whether those allegations are true, the state court gets first crack at resolving the facts,” he told the Court. He said the current standard, that strikers are protected if they take “reasonable precautions” to avoid damage to the employer’s property, is too “nebulous.”

“That’s a very sweeping argument,” an attorney for a major labor union told Work-Bites. “He wants a new rule, a new test that employers can sue unions any time they allege any kind of intentional damage.”

Teamsters lawyer Darin M. Dalmat responded that the facts showed the strikers had clearly taken reasonable precautions to prevent permanent damage to the trucks, by leaving them running so the concrete wouldn’t harden inside the drums. The NLRB, he said, has never found strikers liable for damages “merely because perishables spoil.”

“No harm came to Glacier’s trucks or facility,” he told the Court. The company, he added, admitted that the workers had taken “two key precautions… namely, that we put the trucks back in Glacier’s facility in a position where every day it deals with leftover concrete.”

Assistant to the Solicitor General Vivek Suri, arguing for the federal government, took a middle ground, leaning toward Glacier Northwest’s position. The union, he said, had not presented evidence from which the NLRB could reasonably conclude that the strikers’ conduct was protected. Responding to Chief Justice John Roberts’ posit that Garmon would protect a striker who poured containers of milk down the drain, he said there needed to be a distinction between spoilage and “affirmative acts.”

Suri also argued that the NLRB was better qualified than state courts to make factual determinations, because if a state court “misunderstands what the Board's precedents require in a particular area, then it may focus on immaterial facts or ignore the material facts.”

Francisco argued that the NLRB could not pre-empt employers from suing in state court because of the Court’s 1983 decision in Bill Johnson’s Restaurants v. NLRB. It unanimously ruled that an Arizona restaurant could sue a waitress it fired for union activity for libel in state court, even though the NLRB had ruled that the suit was retaliation. The decision cited the First Amendment right of access to the courts.

That case is “so not on point,” the union attorney commented, as it involved First Amendment issues, not Garmon.

What The Justices Are Saying

Justice Amy Coney Barrett asked Francisco if the NLRB found an employer had committed an unfair labor practice, could a state court decide the facts differently? Francisco said yes: “If you've got a state complaint that alleges clearly unprotected conduct, the state court gets to adjudicate it.” But he said unions could present the NLRB ruling as evidence for their defense.

Glacier argued in its brief that the Teamsters timing the strike to start during a shift, when trucks would be full, demonstrated the union’s intentional disregard for company property. One factual issue that did not come up in the hearing, however, was that the Teamsters said in their brief that drivers worked staggered shifts. The strike had been called at 7 a.m., when some drivers were coming in, but others had started at 2 a.m.

“Workers get to pick when they go on strike,” the union attorney said. “It has been clear forever that if the employer has a high season, workers can go on strike during the high season.”

Responding to a question from Justice Ketanji Brown Jackson, Dalmat said the idea that there was “no plausible argument” that the law protected intentional property damage was “overbroad.”

“Property could be anything,” he said. “Property could be goodwill. Property could be money. Property could be intangibles.”

With the arguable exception of Roberts, the Court’s right-wing bloc did not telegraph clear anti-union sentiments. Justices Barrett, Neil Gorsuch, and Clarence Thomas asked mainly about procedural issues, and Samuel Alito and Brett Kavanaugh stayed silent.

“It’s hard to know with this Court what you’re going to end up with,” the union lawyer said. But, she continued, it’s “not surprising” that this case, the latest in a long line trying to undermine workers’ rights, was coming before the Supreme Court in the middle of a surge in union organizing.