Jurisprudence

The Supreme Court’s Conservative Supermajority May Sabotage Unions’ Right to Strike

Glacier Northwest is an attack on workers’ collective power. It also has frightening implications for American democracy.

Justice Neil Gorsuch in his robe in front of a red curtain
Justice Neil Gorsuch, a longtime foe of union rights. Olivier Douliery/Getty Images

Remember those pesky analogy questions on the SAT? Here’s one for you, straight from Tuesday’s U.S. Supreme Court oral argument:

• When concrete workers went on strike, they returned their trucks to the company yard and left them running, to prevent the concrete from becoming unusable and to avoid damaging the vehicles. Because of these precautions, the trucks were fine, but since the workers weren’t there to deliver the concrete, some of it couldn’t be used.

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• Is this scenario more like a) cheese workers going on strike, and some cheese being partly ruined? Or b) security guards going on on strike, leaving federal buildings and employees unattended in the middle of a terrorist threat?

This (not very difficult) question is at the heart of Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union 174. The dispute is about whether employers can sue unions for economic harm, including that caused by loss of perishable products, that results from workers going on strike.

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Glacier could potentially open the doors to lawsuits against unions anytime they strike, severely weakening this crucial and federally protected right. The case has drawn attention as a broad attack on the labor movement just when workers nationwide are voicing their desire for unions, organizing, and striking at levels not seen for decades.

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But Glacier is also important for American democracy, both because of its implications about the Supreme Court’s legitimacy as well as its threat to worker power. The case is yet another test of whether the Supreme Court’s conservative supermajority will continue to act illegitimately by relying on questionable reasoning to enact partisan policies through its rulings. And a ruling in the employer’s favor would undermine democracy by harming the ability of working people throughout the economy to exercise collective power to counter the influence of wealthy corporations, with dire implications for the health of our economy and government.

While its decision in Glacier is not a foregone conclusion, the court has already erred badly simply by accepting the case. There was no need to do so: The Washington Supreme Court had decided unanimously in the union’s favor, there was no split in the circuit courts, and there was long-standing precedent that didn’t need to be examined anew.

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The employer’s argument in the case proposes a stark departure from long-standing federal labor law, while disingenuously framing its position as seeking just a wee clarification. The National Labor Relations Act, which dates back to 1935, protects workers’ right to strike and recognizes that when they do, economic harm to the employer may occur (and is, actually, kind of the point).

Under the doctrine of NLRA preemption, the National Labor Relations Board has jurisdiction over issues related to unions and strikes. There are a few exceptions; for example, if violence or vandalism occurs during a strike, employers can still sue. But there’s not (yet) been a case in which an employer has been allowed to sue a union just because perishable products spoiled as a result of a strike.

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The employer in Glacier wants to change that. In an extraordinary leap of logic and chutzpah, Glacier’s attorney (former Donald Trump Solicitor General Noel Francisco) began his argument yesterday by comparing the spoilage of a partial day’s worth of concrete with: federal security guards leaving their posts in the middle of a terrorist threat; a ferryboat crew abandoning ship in the middle of a river; and steelworkers walking out in the middle of a molten iron pour, risking extensive damage to factory equipment. In such situations, Francisco argued, employer lawsuits would be allowed—just as, in his view, they should be in Glacier.

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These analogies wouldn’t fly on the SAT, and they shouldn’t prevail in the Supreme Court either. A terrorist threat is not the same as some spoiled Gorgonzola. An abandoned ferryboat in the middle of a river is not like the loss of a partial day’s worth of product (about $11,000 worth, in Glacier’s case). The employer’s comparisons involve risk to human life as well as extensive damage to property; they’re nothing like the facts in Glacier. Perhaps to corporate oligarchs the thought of losing even a nickel’s worth of product because of striking workers is too much to bear. But their view isn’t the law, at least not yet.

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Francisco’s core argument involved a sleight of hand: He labeled the loss of a perishable product as the “intentional destruction of property.” Because that phrase can also describe actions that are not protected—like violence, vandalism, or arson—Francisco claimed that this strike must also be unprotected.

The union’s attorney, Darin Dalmat, explained how ridiculous this argument is, noting that spoiled product alone has never been a basis for letting employers sue in state court over a strike. He observed that when Congress passed the NLRA, it understood that the intent to inflict economic harm is inherent in the very notion of a strike; also, “certainly, Congress was aware of perishables, like cheese and milk and concrete.” Justice Elena Kagan seemingly agreed, commenting, “Unions do things all the time intentionally to maximize economic harm. … If there’s a seasonal component of a business, workers will try to time their strike in order to maximize the economic harm.”

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A decision in favor of Glacier could also be one more SCOTUS blow to the authority of federal agencies. Justice Kagan observed that the NLRB “has seen thousands of [these cases] and can fit a case like this into a broader map of strike conduct and what’s protected and what’s not.” She never really got an answer from the employer’s lawyer about why the NLRB wasn’t the right forum for the case. Later, Justice Neil Gorsuch, for whom the administrative state is a lifelong nemesis, lobbed the employer’s counsel a softball, asking “what’s at stake” in allowing state courts, rather than the NLRB, to hear claims against striking workers. The attorney’s answer: Glacier would prefer not to be in a venue “where the agency is the judge, jury, and executioner.” (He really said executioner. No one died, unless you count concrete.) Disparaging agencies with overwrought terminology is a sure way to score points with this court’s conservative supermajority.

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Logically, a loosening of federal law to allow more state involvement in union-related labor relations ought to benefit workers as well as employers. For example, workers could bring tort lawsuits in state court for damages when they’re fired for union organizing, or perhaps progressive states could pass pro-worker laws they’re currently preempted from enacting. Instead, though, the conservative majority will likely allow employers to sue workers more easily, but not the other way around. Such a skewed result would further erode the court’s credibility as an institution.

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In addition to being another test of the court’s legitimacy, Glacier has huge implications for whether working people, through their unions, can effectively exercise countervailing power against the immense influence of wealthy people and corporations. Strikes, or the threat of strikes, are one of the most powerful tools workers have for securing better pay, benefits, and working conditions.

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Collective bargaining by unionized workers, often catalyzed by strikes or their threat, is a key factor that kept income inequality at bay and led to the creation of a middle class in the mid-20th century. Collective bargaining doesn’t just benefit union members; it has spillover effects, improving jobs across sectors and regions. It also decreases racial pay gaps and combats racial resentment among white workers.

A strong labor movement strengthens democracy by increasing democratic participation too. Studies show that union members and members of their households register and vote in higher numbers. Even non–union members who live in communities with higher concentrations of unions are more likely to vote. These effects likely stem from union members developing the skills and habits of civic participation, and from unions’ member education and get-out-the-vote efforts.

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Through their political spending on behalf of policies and candidates that support the interests of working people, unions are also one of the few entities that have the ability to even try to counter the tsunami of money that corporations and billionaires pour into our political system.

You wouldn’t know from yesterday’s argument that this case could be both a portent in the court’s legitimacy crisis and a serious threat to an equitable economy and functioning democracy. As is often the case, what is actually at stake in a Supreme Court case goes politely unmentioned during oral arguments.

But the court has the opportunity to avoid doing further harm here. It should affirm the unanimous state court decision dismissing the employer’s lawsuit. Of course, that would perhaps suggest that it shouldn’t have accepted the case in the first place. But that problem, too, can be solved with a multiple choice: When you’ve made a mistake, do you a) double down or b) make it right?

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