Labor at the Supreme Court: “The Right to Strike Means Very Little If You Can Be Sued for Exercising It”

An Interview with Ben Berger

In Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, the Supreme Court is considering whether to permit employers to sue unions for alleged property damages resulting from a work stoppage. Ben Berger, a labor lawyer in Seattle who is part of the legal team representing Teamsters Local 174 at the Supreme Court, explains to us what’s at stake.

Ben, you’ve been involved in the so-called Glacier vs. Teamster case at the Supreme Court. What is the importance of this case?

The technical issue that the Supreme Court decided to hear is whether the National Labor Relations Act (NLRA) impliedly preempts a state tort claim against a union for “intentionally destroying an employer’s property” during a “labor dispute.” What that means practically is the Court is deciding whether employers who are upset about business losses during a strike can sue unions in state court, or whether those disputes have to first be channeled to the National Labor Relations Board, the NLRB.

While that dispute seems like a very dry technical issue, it actually has significant ramifications for the right to strike.

Why is this important? What if the Supreme Court says it’s OK to sue unions in state court before or in parallel to the NLRB process?

What that means for the labor movement is, you would have the Supreme Court saying it’s open season on unions and workers, to file state law claims for destruction of property based on what happens during a strike.

Preemption means: Whenever the federal laws of the US government conflict with state laws, the federal laws have to trump. The NLRA trumps state laws.

Preemption is supposed to work by quickly removing a case from state court so you don’t have to litigate it there. Even having to undergo the expense of litigating can be ruinous. Hiring a lawyer is not cheap. Even if a union would win in the end in state court, making unions or workers go through the expense of litigating such claims in state court, is going to take away a lot of the union’s resources and could potentially bankrupt them for engaging in what is in actuality protected conduct.

Hypothetically, if Glacier wins at the Supreme Court, it does not mean that automatically the union will lose the state law claim. It just opens the door to many more such cases. Employers could then sue unions and go after their resources, but it could result in individual workers being sued as well.

But even if the union wins this case in front of the Supreme Court: in accepting this case the Supreme Court already engaged in taking away the swift process of preemption, right?

Some damage is done because unions and workers will now know that this risk is looming over them, and that can potentially affect strike planning.

Under current law, unions can strike in an effective way, for example with a sudden work stoppage. Until now, there’s no dispute that you have the right to do that as long as you take very basic precautions. But now it seems possible that you could incur a lawsuit if any amount of employer product gets spoiled.

An employer could come along and say: “Hey, we lost profits because of your strike. We’re going to sue you for those lost profits.” So, that risk hangs over unions. Unions could therefore say, “all right, we’ll strike, but let’s try and accommodate companies to avoid liability. We’ll give them notice – like, weeks ahead of time – that that we’re going to strike and assist them in every possible way to avoid damage.” If you announce a strike weeks or days in advance, even sometimes hours in advance, the employer can make itself strike-proof.

The ability to deprive the employer of your labor by engaging in a work stoppage is, when it comes down to it, the only serious weapon workers have against capital. The right to do so means very little if you can be sued for exercising it.

And so, if we have this new system where you’re basically telling the employer in advance of a strike, then the strikes are not going to be very effective. Losing a strike will often result in contracts that are less favorable to workers. Unions may decide not to strike at all and just accept a worse offer. The economic realities of that are going to be lower wages, fewer benefits, and an economic system that’s more favorable to the ownership class.

When can we expect a decision from the Supreme Court?

We’re expecting a decision no later than June.

The case in question is about the Teamsters 174, in Seattle. Glacier is the employer on the other side. What happened?

Glacier is one of four major sand and gravel companies in the King County area. They are all union, and historically they bargain in a coordinated fashion. Local 174 represents the drivers at each of these companies in King County. Glacier not only delivers the concrete, it actually makes the concrete at its facility (called batching the concrete). It also has some mines, where it mines the underlying gravel aggregate material. The drivers the union represents deliver the concrete from the company’s facilities to contractors and customers throughout the area.

In 2017, Local 174 gave notice several months in advance that the contract was terminating. In July of that year, its workers took a strike authorization vote, which the union publicized. The employer knew a strike was possible. The company did anticipate the strike and made some preparations, but it took the risk to continue operating anyway because it wanted to make profits during the period where the contract had expired. But the no-strike provision in that contract had expired with that contract.

The NLRA was passed in the 1930s during the New Deal era. It preserves the preexisting right to strike. The Supreme Court has also recognized that workers have the right to strike in a way that applies economic pressure to their employer. That’s kind of the point of a strike. The only limit is, and this becomes very important in this case, that under the NLRB’s doctrine you have to take reasonable precautions to prevent aggravated, imminent, foreseeable harm to the plant premises and to persons.

And did the Teamsters 174 harm the plant premises and persons?

No. This is what happened: We’re going back to August 11, 2017. At 7:00 a.m., the union called a strike. The day had gotten started and workers were in the middle of various stages of the batching and delivering process, continuously picking up loads of concrete at the plant and delivering them. The union notified the drivers of the strike through a text and through the company’s radio that, basically, we’re now on strike. Please return your vehicles to your yard, follow your supervisor’s instructions on what to do with your truck. If you need to wash it out, because sometimes there’s residual concrete, follow those instructions. And if they want you to dump the concrete somewhere, do that. So they said, bring the trucks back to the company’s care and let them deal with it.

The company, of course, gets on the radio and says, no, no, you have to complete deliveries. But the contract had expired. There is no obligation for workers to do that. So all the drivers returned their trucks to the yard. The vast majority had no concrete in their truck anyway, but around 15 to 20 drivers had full loads of concrete still in their truck.

And most of those sought out their supervisor as they were instructed or left their trucks running. So the barrels were still spinning, which delays the concrete hardening, potentially for hours.

The company, despite knowing that a strike could happen, hadn’t scheduled replacement drivers or any other way to deliver the concrete.

The only thing the company did here is, they took over the trucks and with the assistance of its other employees and even some of the drivers just offloaded the concrete. And then the union set up the picket line, and we had a week-long strike. But there was no damage to Glacier’s yard or equipment. Just unused concrete that hardened at Glacier’s yards and had to get hauled away later.

And then the legal battle starts.

After the strike ends, the company sends out warning letters to about 15 drivers, those who returned with full loads, saying, you broke a company work rule by not delivering the concrete to the customer and not properly handling your truck. And that is very clearly, from the union’s perspective, and under current law, punishing drivers for engaging in a strike. But strikes are protected. The union then filed an unfair labor practice charge with the NLRB, alleging Glacier was retaliating against drivers for engaging in protected conduct.

While that investigation was starting, a couple months later, the company sued the union in Washington State Court basically saying that by organizing this walkout of drivers on August 11, the union had conspired to intentionally destroy its concrete. In response, the union argued to the NLRB that the bosses were basically trying to sue the union for engaging in a strike, which is another kind of unfair labor practice.

If anyone is going to decide whether this was lawful or not, it should be the NLRB. And so we argued to the state court that the claims were preempted by the NLRA. Drivers were engaged in a protected strike. We won at the trial court level of state court. We got reversed at the intermediate court. And then we won nine-nothing at the Washington State Supreme Court.

The victory at the state supreme court resolved other allegations that were tying up the Board’s ability to proceed with its investigations. So in January 2022, the NLRB’s General Counsel finally issued a complaint against Glacier. An administrative law judge held a trial over the General Counsel’s complaint against the company in February and March 2023.

However, Glacier went to the US Supreme Court to challenge that ruling of the Washington State Supreme Court.

And the outcome of the NLRB hearing …

… is also not yet decided.

This process, that the NLRB hears the case first and that it’s not dealt with in state courts – that’s based on precedent from 1959, correct?

Yes. The Supreme Court ruled in 1959, in the San Diego Building Trades Council v. Garmon case, that the party who asserts preemption, union or employer, only needs to show that the underlying conduct is arguably protected or prohibited by the NLRA. And what that means is, once you’ve shown that the case is at least arguably subject to the NLRA, you gotta put the state action on hold or dismiss it and give the NLRB the first opportunity to decide whether the underlying conduct is actually protected or prohibited.

If it decides there’s no protected or prohibited conduct, then go ahead, you can restart the state court action. It’s really about which entity gets to decide first.

Why is this sequence so important?

If this conduct – the work stoppage – is protected, and we’re entirely confident that under existing case law, the strike was protected, and the NLRB decides that way, then it truly does prevent the state action from going forward. The employer could then still try to overturn this NLRB decision in federal court. But then it’s a discussion about what the NLRA means as applied to the evidence that came out at a Board trial.

The alternative is to say, even as the NLRB is adjudicating its case, a state court gets to decide whether certain conduct creates liability under state law. The union is then forced to engage – with time, money, and other resources – in the state court case in parallel.

And that parallel case could potentially conflict with what the NLRB decides. Then you could have a state law decision saying hypothetically that the union’s conduct was illegal, which completely undermines the NLRB’s authority.

So, this case is not only about workers’ right to strike, though it very much is. It is also about trying to disempower the NLRB, the very entity that Congress in the New Deal era entrusted to decide these issues.

How did all of this then play out in front of the Supreme Court?

It was kind of a whirlwind. It all happened pretty quickly. The company ultimately filed its appeal in spring. We opposed it. And then we found out in October, 2022, the Supreme Court was going to take the case. And it’s actually a pretty quick process, like boom, boom, boom, over just a couple months. You have to brief the argument and then be prepared to argue in front of the judges in January. In October, Local 174 retained the Stanford Supreme Court Clinic as co-counsel to work with our office on the Supreme Court brief, which was a great experience. We got to work with some really experienced Supreme Court litigators and very bright law students, and the collaborative effort resulted in a brief we think the movement can be proud of, whatever the case’s outcome.

Was this your first time at the Supreme Court?

Yes, it would probably be the first time for many labor lawyers because there are so few labor cases that come before the Supreme Court. It’s the first time for everyone at my firm.

The decline of union density in the last 50 years also led to a decline in labor law as an area of law that’s taught in law schools, that’s practiced, and cases that come before the Supreme Court. The Supreme Court gets precious few cases in the labor area, and even fewer that deal with this preemption issue.

What was the atmosphere there?

The Supreme Court is always a pretty hot bench because they take cases that are interesting. But it’s a very formal environment with robes and so on. But you’re very close up to the justices. When you’re sitting at a counsel table, it’s almost like you’re looking up at them more than toward them from a distance. You’re just seated below them.

An interior design of power?

Certainly, yeah.

You’ve mentioned the 15 truck drivers who got the letters when the company went after them. Have they been involved at the Supreme Court?

Not in front of the Supreme Court, but in the NLRB case. Around 12 of those drivers testified there.

How do they take it, that such a big Supreme Court case developed out of them taking strike action?

A lot of these drivers are basically ready to move on with their lives. It’s been five and a half, six years. In fact, since the 2017 strike, there has been another strike in the same industry that was actually longer and harder and a more difficult fight, at least from a non-legal point of view. That was last year, in 2022. So it’s kind of surreal that we’re still fighting about a strike that has happened so long ago.

I don’t think anyone anticipated at the time that returning their trucks to the yard and following their employer’s instructions to dump the concrete was going to lead to a Supreme Court case. None of us anticipated that.

What happened to this concrete that was dumped out? Is there still a pile of hardened concrete somewhere, like a concrete monument for this strike?

The concrete was dumped in some bunkers. Other workers, non-driver employees, set those up. These are three-sided walls or blocks and you just let this liquid concrete settle within these structures that you’ve built, it hardens and then it gets broken up and disposed of at some other facility. This happens regularly.

At some places, they have these machines called reclaimers. They’re really quite impressive. You dump the concrete into one end, then it spits out the aggregate, the cement, and the water separately on the other end, so it can be reused.

But even at the facilities where they had a big pile of hardened concrete in these bunkers, it got hauled away. So the concrete isn’t there anymore. It doesn’t exist as a monument anymore. But the story does.