{"id":4321,"date":"2023-03-21T20:28:47","date_gmt":"2023-03-21T20:28:47","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=4321"},"modified":"2023-03-21T20:28:47","modified_gmt":"2023-03-21T20:28:47","slug":"right-to-strike-take-a-hike-evisceration-of-right-to-workplace-speech-continues","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2023\/03\/21\/right-to-strike-take-a-hike-evisceration-of-right-to-workplace-speech-continues\/","title":{"rendered":"Right to Strike, Take a Hike! Evisceration of right to workplace speech continues.\ufffc"},"content":{"rendered":"\n

(Source<\/a>)<\/p>\n

On January 10th<\/sup>, 2023, the Supreme Court heard oral arguments<\/a> in Glacier Northwest, Inc. v. International Brotherhood of Teamsters<\/em><\/a> (No. 21-1449). Ready-mix concrete supplier Glacier Northwest appealed<\/a> a Washington Supreme Court decision that barred its lawsuit against a union under Washington state tort law for allegedly intentionally destroying company property during a labor dispute. The Washington Supreme Court held that the National Labor Relations Act (\u201cNLRA\u201d) preempted this sort of state tort suit. The events that gave rise to the suit unfolded while workers were actively bargaining<\/a> for a collective bargaining agreement. The NLRA requires that employers and unions bargain in \u201cgood faith\u201d<\/a> by adhering to certain obligations. Failing to meet these obligations qualifies as an unfair labor practice<\/a> (\u201cULP\u201d), which is unlawful under the NLRA.<\/p>\n

Cement-mixer drivers in Washington, represented by the Teamsters Union and employed by Glacier Northwest, grew frustrated with the pace of bargaining<\/a> and voted to strike by walking off the job\u2014 a common form of labor action protected by the NLRA<\/a>. On the day of the strike, drivers scheduled to report to work early arrived as usual<\/a>, loaded their trucks\u2019 drums with cement, and conducted their morning deliveries. When the clock struck the coordinated time to strike, the early-shift workers drove their trucks filled with cement to Glacier Northwest\u2019s headquarters and walked off the job. By this time, some workers had already completed their deliveries. But others had not. Those drivers with full trucks purposefully did not turn off their trucks so that the loaded cement would not harden<\/a>. The strike lasted a week<\/a>. Without drivers, the company could not complete the deliveries. And as a result, some of the cement<\/a> eventually hardened and was rendered unusable.<\/p>\n

Glacier sued the Teamsters for \u201ctortious destruction\u201d of the company\u2019s property<\/a> and demanded that the union pay damages for what happened to the cement because of the strike. Glacier alleged that the union had intended to cause property damage, even though drivers left loaded trucks running to keep the cement from hardening. In response, the Teamsters filed a ULP with the National Labor Relations Board<\/a> (\u201cNLRB\u201d) alleging that Glacier filed its \u201ctortious interference\u201d lawsuit in retaliation for workers striking<\/a>. The NLRB\u2019s general counsel found merit in the union\u2019s charge and issued a complaint against the employer, Glacier. That case is still making its way through the Board\u2019s process, and a hearing was held<\/a> on January 24th<\/sup>, 2023.<\/p>\n

But Glacier did not admit defeat. Instead, Glacier appealed to the U.S. Supreme Court and argued that this case presented an \u201cideal vehicle<\/a>\u201d to overturn long-standing precedent. Relying on the Supreme Court\u2019s recent decision in Cedar Point Nursery v. Hassid<\/em><\/a> (2021) , Glacier argued that labor law does not deprive employers of their \u201clegal right to the possession and protection of [their] property.<\/a>\u201d Glacier based this argument on its point that the national interest in protecting labor rights \u201cdoes not override \u2018the importance of safeguarding basic property rights that help preserve individual liberty.<\/a>\u201d To support its characterizations of the balance between employee labor rights and employer property rights, Glacier made two core arguments. First, Glacier argued that \u201cthe state\u2019s interest in curbing intentional property destruction meets the \u2018local feeling\u2019 exception to Garmon <\/em>preemption.<\/a>\u201d Regardless, Glacier argued second that dismissing the lawsuit would effectuate a taking by the federal government of the damaged concrete\u2019s value, violating the Takings Clause of the Fifth Amendment. Perhaps emboldened by Cedar Point<\/em>, Glacier contended that the Court must find a way for the suit to proceed in order to avoid a constitutional problem\u2014evoking the constitutional avoidance doctrine<\/a> of interpretation.<\/p>\n

Glacier\u2019s arguments could enable the Court to effectively dismantle the right to strike. Through the NLRA, Congress created a comprehensive statutory scheme<\/a> whereby Congress gave the NLRB exclusive control to regulate certain areas within labor relations, enforce the Act, and set national labor relations policy. By enacting the NLRA, Congress intended to set a uniform national labor relations policy<\/a>. In practice, courts have interpreted<\/a> the NLRA\u2019s comprehensive statutory scheme as signaling Congress\u2019 express intent for the NLRB to regulate certain areas exclusively<\/a> and leave others unregulated<\/a>. All governmental bodies must respect that exercise of federal supremacy. As a result, neither state nor federal courts can enforce laws that infringe upon that regulatory space. In other words, the NLRA preempts<\/a> the use of regulation for a purpose assigned exclusively to the NLRA.<\/p>\n

The Court has since established two main flavors of NLRA preemption<\/a>. The first stems from Congress\u2019 intention to leave unregulated certain \u201ceconomic weapons\u201d available to employees and employers, in order to preserve the give-and-take inherent to collective bargaining and avoid offsetting \u201cthe balance of power between labor and management expressed in our national labor policy\u201d (Machinists<\/em><\/a>). The second flavor effectuates the NLRB\u2019s primary jurisdiction over national labor relations by stripping courts of jurisdiction over conduct arguably subject to Section 7 or 8 of the NLRA (Garmon<\/em><\/a>). In doing so, the NLRA \u201cprecludes application of conflicting or even arguably conflicting state law in order to ensure that labor law applies uniformly to all workers, unions, and employers across the country.<\/a>\u201d The Washington Supreme Court analyzed Glacier\u2019s claim under Garmon <\/em>and found that the NLRA preempted the claim because the alleged loss was \u201cincidental to a strike arguably protected by federal law.<\/a>\u201d But the Court has recognized a narrow exception to Garmon <\/em>preemption<\/a>: states can apply their own tort laws only for torts \u201cso deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, . . . [Courts] could not infer that Congress had deprived the States of the power to act.<\/a>\u201d <\/p>\n

Glacier seeks to broaden this exception\u2019s application and breadth<\/a>. Currently, the exception only applies in cases<\/a> where the conduct challenged in state court amounts to an unfair labor practice (Section 8<\/a>). By limiting the exception in this way<\/a>, the Court ensured that states would not regulate conduct that Congress intended to protect. This narrow interpretation also means that the exception does not extend to<\/a> conduct arguably protected by Section 7<\/a>\u2014 concerted activity<\/a>, like a strike<\/a>.<\/p>\n

In deciding Glacier Northwest<\/em>, the Court will have to drastically alter NLRA preemption if it wants to allow state tort claims for damages resulting from strikes. And the Court might seize that opportunity. As Glacier\u2019s counsel opportunely highlighted<\/a>, the Court has shown interest in rebalancing labor relations to fully prioritize employers\u2019 property rights over employees\u2019 right to unionize. In the past<\/a>, the Court deferred to the Board to conduct this balancing in individual cases. But the Court could use Glacier Northwest <\/em>to usurp that power and permanently set the balance in a way that effectively forbids any intrusion on an employer\u2019s property rights by their employees exercising their Section 7 rights. The NLRA recognizes that an employee\u2019s economic dependence on their employer<\/a> chills<\/a> workers\u2019 exercise of labor rights. The threat of litigation against individual workers would only further deter that exercise.<\/p>\n

If it rebalances these values, the Court will directly infringe on the NLRB\u2019s recognized exclusive jurisdiction over national labor relations policy. The NLRB is entitled to significant deference by courts<\/a>, given its expertise and Congress\u2019s express delegation of power to interpret the NLRA. If the Court slightly broadens its holding and finds that the NLRA does not preempt claims for harm stemming from labor disputes, then employers could potentially sue<\/a> their employees for reputational harm as well.<\/p>\n

The Court\u2019s potential holding that the NLRA does not preempt state actions for damages stemming from labor actions would decimate union coffers. Instead of allocating hardworking employees\u2019 dues money to representation in grievance proceedings, negotiating a collective bargaining agreement, or restructuring union governance to benefit all people, unions will instead focus on fear. Fear that the very employer employees want to organize for protection against will pry the funds intended for that purpose from them. This likely future harkens back to the days of the company store<\/a>. Workers will have to hand their paychecks back to their employer\u2014and only after years of litigation.<\/p>\n