News & Commentary

June 2, 2023

Swap Agrawal

Swap Agrawal is a student at Harvard Law School.

In today’s news and commentary, labor leaders, academics, and reporters react to the Supreme Court’s ruling in Glacier Northwest. On Thursday, June 1, the Supreme Court decided Glacier Northwest v. Teamsters. Justice Barrett’s majority opinion, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Kavanaugh, ruled that the NLRA did not preempt Glacier’s tort claims. The majority held that the union’s conduct was not arguably protected by the NLRA because the union failed to put forth evidence showing that it took reasonable precautions to protect against foreseeable and imminent danger to the employer’s property. See Linh’s coverage of the decision here.

As Professor Sachs pointed out yesterday, the majority opinion is very specific to its reading of the facts of the case. The opinion does not change the NLRA’s preemption regime. Rather, Justice Barrett admonished the union for executing the strike “in a manner designed to compromise the safety of Glacier’s trucks and destroy its concrete.” She acknowledged that mere risk of spoilage does not render a strike unprotected, but she explained that the union’s conduct here not only resulted in the destruction of a perishable product, but “prompted the creation” of the perishable product by showing up to work in the first place. It remains to be seen how lower courts will apply this “prompting” requirement going forward, as strikes are often timed to maximize the inconvenience to the employer. The majority attempted to cabin its holding by agreeing that “the Union’s decision to initiate the strike during the workday and failure to give Glacier specific notice do not themselves render its conduct unprotected.”

Union leaders and supporters were relieved to see that the majority decision did not impact the legal standard governing NLRA preemption or the right to strike. In a statement released yesterday after the decision, Service Employees International Union (SEIU) President Mary Kay Henry said: “We are pleased that today’s decision by the US Supreme Court in Glacier Northwest doesn’t change labor law and leaves the right to strike intact. The right to strike is fundamental to our freedom as working people. … We appreciate Justice Jackson’s powerful dissent with regard to the specific facts of this case, which now should continue to work its way through the National Labor Relations Board.”

NPR’s legal affairs correspondent Nina Totenberg wrote that: “The U.S. Supreme Court on Thursday handed a victory to business interests in a labor dispute, but the win was more of a whimper than a roar … it preserved the rights of workers to time their strikes for maximum effect.” In the NPR interview, Stanford Law professor and former chairman of the National Labor Relations Board William Gould said: “Virtually every strike is based on timing that will hurt the employer,” and there was “great concern that the court would rule broadly to limit the rights of strikers. But that didn’t happen.”

However, other labor academics expressed more concern. Brishen Rogers, a professor at Georgetown Law, wrote on Twitter that “Glacier is worse than many are making it out to be.” Describing the decision as a Trojan Horse, Rogers argues that Glacier gives states much more power to engage in “experiments” interfering with the right to strike, some of which will pass muster. He also points out that unions will waste time, money, and effort fighting tort cases against unions even if courts eventually strike them down. Finally, Rogers says that progressive states will not be able to take advantage of the change to improve conditions for unions.

There were several other opinions in Glacier Northwest. Justice Alito authored a concurring opinion joined by Justices Thomas and Gorsuch arguing that since Glacier’s complaint alleged that the Union acted “with the improper purpose to harm Glacier,” “[n]othing more is needed to resolve this case.” Justice Thomas, joined by Justice Gorsuch, also wrote a concurrence arguing against the NLRA’s Garmon preemption regime. While the parties in this case did not ask the Court to reconsider Garmon, Justice Thomas wrote that “in an appropriate case, we should carefully reexamine whether the law supports Garmon’s “unusual” pre-emption regime.”

While former union organizer and senior policy fellow at the University of California’s Institute for Research on Labor and Employment Jane McAlevey agreed that the majority’s ruling in Glacier was not that bad for unions, she argued in an article in the Nation that the concurrences by Justices Alito, Thomas, and Gorsuch signaled that future decisions by the Court could be much worse. McAlevey argues that unions should respond to Glacier by bringing more workers into every step of the collective bargaining process to build commitment and solidarity for strike activity. She also calls for unions to preemptively propose and win contract language that includes an explicit waiver of the employer’s right to take any tortious claims to court.

Finally, Justice Jackson authored a vigorous dissent arguing that the fact that the NLRB’s General Counsel filed a complaint with the Board alleging that union’s strike conduct was legal logically implies that the union’s conduct is at least arguably protected by the NLRA. She wrote that this case was “Exhibit A as to why the Board—and not the courts—should ordinarily take the first crack at resolving contentious, fact-bound labor disputes of this nature.” The majority only mentioned the General Counsel’s complaint in passing in footnote 3 of its opinion, writing that “The lower courts have not addressed the significance, if any, of the Board’s complaint with respect to Garmon preemption. We will not do so in the first instance. … The Board’s general counsel agrees that this issue is not properly before us.” Justice Jackson responded: “The majority cannot have it both ways. A concern about the Court’s institutional role justifies, at most, vacating the judgment below and remanding for the lower court to consider the import of the General Counsel’s complaint.” Stay tuned for Professor Block’s analysis of the decision forthcoming in SCOTUSblog.

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