SCOTUS strikes again

This time, however, two of the three "liberal" justices went with the "conservatives" to weaken the rights of unions to strike.

In a decision released yesterday, the Supreme Court merged its disregard for workers’ rights with its hatred of the administrative state to produce a ruling that undermines the most powerful tool labor has to defend itself from unfair or unsafe working conditions: the strike.

The case is called Glacier Northwest Inc v. International Brotherhood of Teamsters. At issue was a 2017 strike organized by Teamsters Local 174 against Glacier Northwest, a cement company in Seattle. The teamsters showed up for work like on a normal workday, loaded their trucks with wet cement, and set out to make deliveries. But when labor negotiations with Glacier broke down, the teamsters returned the trucks to the company and walked off the job. The workers left the cement mixers running [so the cement wouldn't set], but some of the product hardened, rendering it useless. After the strike was over, Glacier sued the teamsters union in a Washington state court for damages caused by the strike.

All strikes cause economic harm to the employer. That is literally the point of strikes. And yet most people understand that striking workers cannot do extra damage to their employers beyond their refusal to work.

[...]

Writing for the majority, Justice Amy Coney Barrett found that the teamsters created the harm to Glacier by showing up for work in the first place. She writes: “So by reporting for duty and pretending as if they would deliver the concrete, the drivers prompted the creation of the perishable product [emphasis in the original]. 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 workers were not “pretending” to work; they showed up to work. The right to strike is not limited to the beginning or end of a workday. Somebody should inform Barrett that a key difference between workers and slaves is that workers can stop working whenever they damn well feel like it.

[...]

But [...] the question of added harm is, or should be, irrelevant under the law. That’s because the right to strike is protected under the National Labor Relations Act (NLRA) [... The National Labor Relations Board (NLRB)] —not Glacier, not a state court, and not the US Supreme Court—is supposed to get first crack at determining whether a union’s activities are protected under the NLRA.

According to the Supreme Court’s own precedents [...] , it is supposed to stay out of labor disputes until the NLRB has had a chance to rule.

  Elie Mystal @ The Nation

Of course, we've already seen what this court thinks of precedents.

Ketanji Brown Jackson argues in her lone dissent, the NLRA “requires state courts to take a ‘jurisdictional hiatus’ while the [NLRB] considers the dispute in the first instance.”

KBJ argues, correctly, that the Supreme Court should not have taken the case at this time.

Only if the NLRB determines that the union activity is unprotected can lawsuits against unions or workers proceed to the state courts.

[...]

[A] Washington state court found that the teamsters’ actions were “arguably protected” by the NLRB and dismissed the case. Then, the general counsel of the NLRB filed an administrative complaint against Glacier. Clearly, both the NLRB and the state court think that this case should first be settled by the NLRB.

[...]

If employers can run to state courts every time they don’t like how striking workers strike, it vitiates the power of the NLRB and the right to strike in general.

[...]

Barrett, Sotomayor, and Kagan might think that this ruling will be cabled to the specific situations where workers show up for work, strike in the middle of the day, and “create” extra economic harm to their employers, but the practical effect of this opinion will be to give every employer an incentive to sue in state court for damages that they would not have been able to get through the NLRB.

Jackson chastised her fellow justices for “falter[ing]” by abandoning a half-century of precedent “scrupulously guard[ing]” the authority of the NLRB.

The Joe Biden appointee berated her peers for “try[ing] its own hand” at interpreting NLRB precedent and making related factual determinations that will lead to chaotic consequences.

“And in the course of inappropriately weighing in on the merits of those questions at this stage, the majority also misapplies the Board’s cases in a manner that threatens to both impede the Board’s uniform development of labor law and erode the right to strike,” Jackson warned. That danger was precisely the reason Congress created the NLRB, said Jackson, articulating an argument whose parallel might well be applied to other federal agencies in response to the current Court’s hostility toward the “administrative state.”

[...]

Costly damage as a result of a strike is nothing new, she argued. Rather, “Congress was well aware that organized labor’s exercise of the right to strike risks harm to an employer’s economic interests.”

Despite the potential for damage to an employer, “Congress protected that right anyway,” said Jackson.

[...]

Jackson acknowledged that striking employees would not have legal protection if they took an “affirmative step to destroy or seize the employer’s property,” or if they failed to take “reasonable precautions” to avoid “imminent, aggravated injury,” but likened perishable concrete to spoiled milk or cheese — results that do not generally render a strike “unprotected.”

[...]

Jackson called the fact that drivers could have “saved” the concrete by delivering it to the intended customers “beside the point.” Holding employees liable for incidental loss of perishable goods would undercut their right to strike in the first place. The majority, by contrast, focused on the damage to the trucks — as opposed to the damage to the hardening concrete; Jackson said such an analysis is “complex” and “nuanced,” and that the strike involved was at least “arguably” protected.

[...]

Justice Clarence Thomas also wrote a short concurrence which was joined by Gorsuch. In it, Thomas urged the Court to rethink the framework by which it analyzes conflicts between state law and the NLRA. While the applicable precedent did not need to be disturbed in the Glacier case, Thomas suggested the Court consider upending it in an “appropriate” case in the future.

  MSN

Clarence is letting us all know that he is ready to destroy decades of progress, in this case by inviting someone to bring a case that would permit SCOTUS to dismantle the NRLA, and in Dobbs by signaling that someone should bring a case that would permit SCOTUS to take away the right to gay marriage, and even to contraception.

...but hey, do what you want...you will anyway.