In the white-knuckle pastime of Supreme Court watching, one case this term received comparatively little attention. Glacier Northwest v. International Brotherhood of Teamsters Local No. 174, in which a concrete company sued the labor union representing its drivers for damages arising from a strike, seemed only to be discussed, with considerable dread, in the narrow world of labor.
The case concerned the scope of the drivers’ right to strike and the related issue of who should resolve disputes about actions that are “arguably protected” by that right: state courts or the National Labor Relations Board, the federal agency that oversees organizing in the private sector. Last week, the Justices ruled against the Teamsters, by a vote of 8–1. (The sole dissenter was the newest Justice, Ketanji Brown Jackson.) The majority decision, delivered by Justice Barrett, is modest and fact-specific—and is thus more a signal than a sea change. Still, it raises an ominous question for the labor movement: How important a tactic will the strike continue to be?
First, the facts. In 2017, truck drivers with Local 174 of the Teamsters union, in Seattle, were stalled in their contract talks with a concrete company called Glacier Northwest. Labor relations in the industry were already fraught, and a majority of the union’s members approved a strike. The decision of when, exactly, to begin the strike was left to the officers of the union. They pencilled in a date in mid-August, but then a high-volume mat pour—to create the concrete slab of a commercial building’s foundation—appeared on that day’s schedule. The strike was moved to the day before the mat pour, when smaller deliveries were on the calendar. The idea was to cause a major disruption but not inflict excessive harm, according to the Teamsters. No advance notice was given to union members.
When the drivers on shift received word from union headquarters, some were in the middle of their deliveries. They drove back to Glacier Northwest and parked their trucks. It wasn’t uncommon for workers to finish a job and return with some leftover product, but this time sixteen trucks had full or nearly full tanks of freshly mixed concrete. The drivers of these trucks left the tanks twirling, so the concrete wouldn’t harden immediately. The managers on site scrambled to dump it, costing the company about eleven thousand dollars.
After a week of picketing, the two sides were able to agree on new contract terms. But Glacier Northwest never forgave that opening salvo: the abandonment of ready-to-pour concrete. The company disciplined the drivers involved, asserting that the material could have hardened and wrecked the trucks. (Under federal labor law, the right to strike does not entitle workers to destroy company property.) The Teamsters believed that this discipline was retaliatory, and complained of unfair labor practices to the N.L.R.B. The company then sued the union in state court. The Teamsters argued that the trucks were not damaged, and that the drivers’ refusal to pour the concrete resulted only in economic harm—a protected union activity—not malicious destruction. The point of a strike, after all, is to force an employer’s hand.
Because the crux of the case was a dispute between an employer and unionized employees, and because unfair-labor-practice charges were pending, the trial court in Washington held that the National Labor Relations Act should preëmpt the state’s jurisdiction. A state appeals court reversed that decision, only to be reversed again by the state’s Supreme Court. By the time the case arrived at the U.S. Supreme Court, it had become a battle over the allowable contours of a strike and the power of the federal government to regulate labor organizing. Litigators from Jones Day and the U.S. Chamber of Commerce spoke for Glacier Northwest, while the N.L.R.B.’s general counsel lent support to the Teamsters. (The N.L.R.B. declined to speak with me about the decision. Jones Day did not respond to requests for comment.)
For corporate America, the case was an opportunity to constrain union activism by permitting employers to sidestep a key federal agency. But what Glacier won was less far-reaching. The Court’s majority squeezed the case into the molds of precedent: because the “risk of harm to Glacier’s equipment and destruction of its concrete were both foreseeable and serious,” the drivers’ actions were not “arguably protected” by their right to strike. This case, the eight Justices ruled, was more like an ordinary tort lawsuit than a federal labor-management dispute. (It will now be sent back to a trial court in Washington State.) “They didn’t obviously overturn National Labor Relations Board precedent, but it casts a very jaundiced eye on the interplay between the Board and the courts,” Cynthia Estlund, a professor of labor law at New York University School of Law, told me. “It is a paradox that unions have a protected right under federal law to do economic harm to their employers, and that can include some incidental property damage. Does any damage now count as the equivalent of sabotage?” (A short concurring opinion, signed only by Clarence Thomas and Neil Gorsuch, invited future litigants to argue that it does.)
Jamie Fleming, a spokesperson for Teamsters Local 174, told me that the decision was “as much of a win as a loss could be.” The Teamsters are preparing for a possible nationwide strike at UPS, but the Seattle local isn’t concerned that any hypothetically spoiled packages would be treated in the same manner as Glacier Northwest’s fresh concrete. Other unions agreed with this assessment. “The issue at hand seems to be doing ‘intentional damage’—that doesn’t apply in our industries,” Manny Pastreich, the president of the Service Employees International Union’s Local 32BJ, which represents property-service workers, mostly on the East Coast, said. (There was little risk of superintendents or janitors vandalizing their buildings en route to a picket line.) “But, whenever we have a strike, will our lawyers put it through another level of scrutiny? Yes, we will do that.” Later this year, should contract negotiations stall, up to seventy thousand commercial cleaners in 32BJ could strike for the first time since 1996. Many thousands more private-sector workers across North America are preparing for possible strikes: actors in Hollywood, with SAG-AFTRA; auto workers in Michigan and Ontario; and nurses at the only large hospital in Bend, Oregon.
Justice Jackson wrote in her dissent, “The right to strike is fundamental to American labor law. . . . The potential pain of a work stoppage is a powerful tool.” Yet strikes are now rare events. Last year, there were twenty-three major work stoppages, as measured by the Bureau of Labor Statistics, compared with four hundred and seventy in 1952.
Strikes are generally carried out by unionized workers, but most union contracts prohibit striking (through no-strike clauses), except when an existing collective-bargaining agreement has expired. Among the causes of the decline of the strike as an instrument for workers are weakened labor laws, the dwindling of union membership to ten per cent of the country’s total workforce, globalization, and timidity among union leaders. “Strikes are the ultimate expression of labor’s power, so the fact that the tool isn’t being used underscores the decline of unions, the decline of worker power in relationship to employers,” Toni Gilpin, a historian of the U.S. labor movement, told me. In earlier decades, strikes were useful not only to win concessions but as an exercise in organizing, including across social barriers. “In some unions, it was a way for Black and white workers in segregated places to come together,” she said. “If you’re only engaging in a strike every five years—and most unions aren’t even doing that—you’re not teaching workers what solidarity means.”
Even in the most militant unions, it’s hard not to anticipate a chill from the Glacier case. Every union will now worry just a little bit more that its calibrated economic harm will be interpreted as unlawful property damage. “A strike is a lot of work in every possible way,” Fleming, the spokesperson for Teamsters Local 174, told me. “It’s a huge financial and emotional toll on members. It’s a huge toll on union staff and the finances of the local.” Last year, her union struck for more than four months against six companies in the concrete and construction business, some of which compete with Glacier.
But she said, after the Court’s decision, “My fear is that unions already on the fence would take this as not necessarily an excuse but as a reason to be more cautious. You have to be willing to strike. And, if you’re not, employers smell it on you.” ♦
