By DON McINTOSH
The U.S. Supreme Court has ruled that a Seattle concrete company can sue a union for damages because ready-mix truck drivers went on strike after concrete was mixed. The 8-1 decision in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local 174 sent shock waves through the union movement because it departs from decades of precedent that said courts should defer to the National Labor Relations Board (NLRB) when it comes to interpreting labor law.
The National Labor Relations Act (NLRA) recognizes and protects workers’ right to strike, and in an earlier era, the Supreme Court ruled that unions can’t be sued if, for example, milk spoils because dairy workers walk off the job. On the other hand, the court found that unions can be held liable if strikers intentionally destroy employers’ property on the way out, such as walking out at a foundry and leaving a furnace full of molten iron so that it could harden and destroy the equipment. Up to now, it’s been up to the NLRB to determine — based on the facts of a case — whether strikers intentionally damaged property like in the foundry case or whether the damage was incidental like in the milk case. Now, the highest court in the land is inserting its judgment in a case of that kind.
The Glacier case started when bargaining broke down between Seattle-based Teamsters Local 174 and a group of five concrete companies. Union members voted to authorize a strike, and the union let employers know it could strike at any moment; employers still didn’t budge. On Aug. 11, 2017, the strike began at Glacier Northwest (also known as CalPortland) after the company had mixed concrete.
Concrete is highly perishable. Once it’s created — by mixing cement, sand, aggregate, and water — it begins to harden immediately. To prevent the concrete from hardening during transit, companies transport it in trucks with rotating drums.
Local 174 chose to begin its strike when concrete was in the trucks on the way to construction sites. Eighty-five Glacier workers struck, including 16 drivers who returned fully loaded trucks back to where they started. Drivers left the trucks running so that the concrete wouldn’t harden and destroy the trucks. But the company didn’t have other staff ready to complete the deliveries, so managers scrambled to figure out what to do and ended up pouring it into hastily created bunkers, where it hardened and became unusable.
From the union perspective, the strike was intended as economic pressure to secure a fair contract, and it worked: After an eight-day strike, Glacier and the other employers agreed to a four-year contract with record-setting wages, improved pensions, and greater job security. But four months later, Glacier sued Local 174 in state court, saying that the Teamsters had intentionally destroyed its concrete.
Washington courts dismissed the lawsuit because under a 1957 Supreme Court ruling in case called San Diego Building Trades Council v. Garmon, state courts can’t penalize actions that are protected by federal labor law. But attorneys for Glacier appealed to the U.S. Supreme Court, and a majority there agreed to hear the case.
The Supreme Court heard arguments from both sides Jan. 10 and announced its decision June 1. The decision was authored by Justice Amy Coney Barrett and joined by John Roberts, Brett Kavanaugh, Sonia Sotomayor, and Elena Kagan.
“The union did not take reasonable precautions to protect Glacier’s property from imminent danger resulting from the drivers’ sudden cessation of work,” Barrett wrote. “Given the lifespan of wet concrete, Glacier could not batch it until a truck was ready to take it. By reporting for duty and pretending as if they would deliver the concrete, the drivers prompted the creation of the perishable product. Then, they waited to walk off the job until the concrete was mixed and poured in the trucks. In so doing, they not only destroyed the concrete but also put Glacier’s trucks in harm’s way.”
The immediate result of the decision is that it sends the case back to the state court for trial. The broader effect is that it could open unions up to greater legal liability when strikes cause spoilage.
Justice Clarence Thomas agreed with the majority decision, but together with Neil Gorsuch, wanted to go further still, saying the NLRA shouldn’t broadly preempt state court action as it does. In their concurring opinion, Thomas and Gorsuch indicated they would welcome a case that would allow them to reexamine (and likely overturn) the Garmon decision.
The only justice to disagree with the majority was the court’s newest, Biden appointee Ketanji Brown Jackson. In a lengthy dissenting opinion, she wrote that the threat of economic harm posed by the right to strike is a feature, not a bug, of the NLRA.
“Employees have a protected right to withhold their labor,” Jackson wrote. “And it would undercut that right if they could be held liable for the incidental loss of the perishable goods that they tend to as part of their job.”
“Unions leverage a strike’s economic harm (or the threat of it) into bargaining power, and then wield that power to demand improvement of employees’ wages and working conditions—goals that, according to Congress, benefit the economy writ large.”
“Workers are not indentured servants, bound to continue laboring until any 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.”
There’s been much talk about a court that’s divided between a majority of six Republican appointees and a minority of three Democratic appointees. But in this case, labor had only one friend on the Court, and that was Jackson.
“American workers must remember that their right to strike has not been taken away,” Teamsters General President Sean O’Brien said in a press statement following the decision. “All workers, union and non-union alike, will forever have the right to withhold their labor …. Today’s shameful ruling is simply one more reminder that the American people cannot rely on their government or their courts to protect them. They cannot rely on their employers. We must rely on each other. We must engage in organized, collective action. We can only rely on the protections inherent in the power of our unions.”