On June 1, 2023, the U.S. Supreme Court issued a decision some have deemed a blow to the right to strike. The 8-1 decision crossed ideological lines, as both conservative and liberal members of the Court either joined the majority opinion or concurred.
Strike
In August 2017, the collective bargaining agreement between cement manufacturer Glacier Northwest and its drivers, represented by the Teamsters, was set to expire. As negotiations over the new contract stalled, the union planned a strike.
The drivers showed up to work, had concrete prepared and poured into their ready-mix trucks, and then walked off the job. Drivers who had already begun their route for the day returned to the facility and abandoned their trucks.
Litigation
Later that year, Glacier filed suit against the union in Washington state court to recover damages resulting from the strike, and the case eventually made its way to the Washington Supreme Court. That court held it couldn’t hear a state tort (wrongful act) claim until the National Labor Relations Board (NLRB) weighed in on whether the drivers’ actions were protected under the National Labor Relations Act (NLRA).
Glacier then appealed the decision to the U.S. Supreme Court on the grounds that the conduct wasn’t arguably protected by the NLRA.
Arguably Protected?
Under the NLRA—and NLRB and Supreme Court precedent—a party claiming that state court is an inappropriate forum for the dispute must show their interpretation of the NLRA isn’t plainly contrary to the Act’s language and that their interpretation hasn’t previously been rejected by the NLRB or courts.
Next, it must offer evidence that would allow the court to find the NLRA “arguably protects” the conduct underlying the lawsuit. This is a lower threshold. A litigant need only prove the NLRB might rule in their favor.
What the Court Said
Here, the Supreme Court said the union failed to meet its burden to show that the drivers’ conduct during the strike was arguably protected by the NLRA. In other words, the union didn’t show the NLRB might rule in its favor.
In its review, the Supreme Court looked at the drivers’ actions (reporting to work, prompting creation of perishable concrete, and abandoning their trucks) in the context of past NLRB decisions finding that striking workers had an obligation to take reasonable precautions to protect the employer’s property from foreseeable, aggravated, and imminent danger resulting from the strike.
The Supreme Court found that, rather than taking reasonable precautions, the drivers executed their strike “in a manner designed to compromise the safety of Glacier’s trucks and destroy its concrete.”
The Supreme Court outlined several hypotheticals that would have rendered the drivers’ conduct “arguably protected.” They could have refused to load their trucks, eliminating the danger of concrete setting in abandoned trucks, or the union could have alerted Glacier that all loaded trucks had been returned to company property. Glacier Northwest v. International Brotherhood of Teamsters Local Union No. 174.
Implications Moving Forward
The Supreme Court’s decision doesn’t eliminate or limit employees’ right to strike—nor did the Court find the union was liable for strike-related damages. Rather, this decision reaffirms the notion that, while employees’ strike activity is protected, they may be held liable for deliberate damage caused to their employer’s property. Glacier’s suit against the union can now resume in state court.
The decision appears to put unions on notice that they must strike in a manner that reduces the risk of foreseeable, imminent danger to an employer’s property. A few lines from Justice Ketanji Brown Jackson’s dissent may later prove powerful, however.
Decisions on these matters tend to be fact-based, and their impact is limited to situations that bear incredible factual similarities to the case being decided. The Glacier decision may be a shot across the bow of organized labor, but its bipartisan nature signals it has support from both liberals and conservatives on the Supreme Court.
Sarah Squillante is an attorney with Porter Wright Morris & Arthur LLP in Columbus, Ohio. You can reach her at ssquillante@porterwright.com. Special thanks to Porter Wright summer law clerk Diego de la Vega for his assistance with this post.
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