Right to Strike, Take a Hike! Evisceration of right to workplace speech continues.


On January 10th, 2023, the Supreme Court heard oral arguments in Glacier Northwest, Inc. v. International Brotherhood of Teamsters (No. 21-1449). Ready-mix concrete supplier Glacier Northwest appealed 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 (“NLRA”) preempted this sort of state tort suit. The events that gave rise to the suit unfolded while workers were actively bargaining for a collective bargaining agreement. The NLRA requires that employers and unions bargain in “good faith” by adhering to certain obligations. Failing to meet these obligations qualifies as an unfair labor practice (“ULP”), which is unlawful under the NLRA.

Cement-mixer drivers in Washington, represented by the Teamsters Union and employed by Glacier Northwest, grew frustrated with the pace of bargaining and voted to strike by walking off the job— a common form of labor action protected by the NLRA. On the day of the strike, drivers scheduled to report to work early arrived as usual, loaded their trucks’ 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’s 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. The strike lasted a week. Without drivers, the company could not complete the deliveries. And as a result, some of the cement eventually hardened and was rendered unusable.

Glacier sued the Teamsters for “tortious destruction” of the company’s property 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 (“NLRB”) alleging that Glacier filed its “tortious interference” lawsuit in retaliation for workers striking. The NLRB’s general counsel found merit in the union’s charge and issued a complaint against the employer, Glacier. That case is still making its way through the Board’s process, and a hearing was held on January 24th, 2023.

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

Glacier’s arguments could enable the Court to effectively dismantle the right to strike. Through the NLRA, Congress created a comprehensive statutory scheme 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. In practice, courts have interpreted the NLRA’s comprehensive statutory scheme as signaling Congress’ express intent for the NLRB to regulate certain areas exclusively and leave others unregulated. 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 the use of regulation for a purpose assigned exclusively to the NLRA.

The Court has since established two main flavors of NLRA preemption. The first stems from Congress’ intention to leave unregulated certain “economic weapons” available to employees and employers, in order to preserve the give-and-take inherent to collective bargaining and avoid offsetting “the balance of power between labor and management expressed in our national labor policy” (Machinists). The second flavor effectuates the NLRB’s primary jurisdiction over national labor relations by stripping courts of jurisdiction over conduct arguably subject to Section 7 or 8 of the NLRA (Garmon).  In doing so, the NLRA “precludes 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.” The Washington Supreme Court analyzed Glacier’s claim under Garmon and found that the NLRA preempted the claim because the alleged loss was “incidental to a strike arguably protected by federal law.” But the Court has recognized a narrow exception to Garmon preemption: states can apply their own tort laws only for torts “so 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.” 

Glacier seeks to broaden this exception’s application and breadth. Currently, the exception only applies in cases where the conduct challenged in state court amounts to an unfair labor practice (Section 8). By limiting the exception in this way, 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 conduct arguably protected by Section 7concerted activity, like a strike.

In deciding Glacier Northwest, 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’s counsel opportunely highlighted, the Court has shown interest in rebalancing labor relations to fully prioritize employers’ property rights over employees’ right to unionize. In the past, the Court deferred to the Board to conduct this balancing in individual cases. But the Court could use Glacier Northwest to usurp that power and permanently set the balance in a way that effectively forbids any intrusion on an employer’s property rights by their employees exercising their Section 7 rights. The NLRA recognizes that an employee’s economic dependence on their employer chills workers’ exercise of labor rights. The threat of litigation against individual workers would only further deter that exercise.

If it rebalances these values, the Court will directly infringe on the NLRB’s recognized exclusive jurisdiction over national labor relations policy. The NLRB is entitled to significant deference by courts, given its expertise and Congress’s 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 their employees for reputational harm as well.

The Court’s 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’ 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. Workers will have to hand their paychecks back to their employer—and only after years of litigation.

By limiting NLRA preemption in such a way, the Supreme Court would open the floodgates to time-consuming and coffer-draining litigation surrounding previously preempted causes of action, in contradiction to Congress’ intent for the NLRA to regulate national labor relations fully and exclusively. The legal labor relations fights would scatter to state and federal courts across the country, and the NLRB would effectively lose its jurisdiction over union ULPs and illegal strikes.

Apart from encumbering courts and unions, the Court’s decision in Glacier’s favor would further decimate our right to strike. Silently chipped away at for years, your right to walk away from work when unhappy could soon not exist in any meaningful form. The right to strike is recognized as fundamental by constitutions throughout the world and by international labor law. We cannot sit idly by while the Court stretches an exception into a sinkhole that subsumes our right and the NLRB’s power to effectuate uniform national labor relations policy.

But the Supreme Court will inevitably decide this case. When it does, the Court must at least acknowledge the decision’s implications for the right to strike. Without this clarity, workers will fear exercising their rights without being dragged into court. The Court must also rule narrowly. Otherwise, it risks destabilizing national labor relations in unpredictable and unforeseeable ways. The Union, in its reply brief, urges the Court to punt the takings claim until the NLRB decides against Glacier Northwest in the concurrent board charge.

And for those beckoning the evisceration of our rights and of private-sector unions, consider this: expanding the limited exception to NLRA preemption would allow for more union claims against companies for damages in court. Look to a claim for misrepresentation and fraud recently brought by semitruck drivers in federal court for one example of the tools this decision could add to labor’s arsenal. UPS, the employer, defeated the suit through Garmon preemption—the flavor of NLRA preemption at issue in Glacier Northwest. A greater ability to finally sue for damages would forever change the types of “economic weapons” actually available to workers and employers— it would change U.S. labor relations forever, without even consulting the agency tasked by Congress to regulate it.



Suggested Citation: Daniel Bromberg, Right to Strike, Take a Hike! Evisceration of right to workplace speech continues., Cornell J.L. & Pub. Pol’y, The Issue Spotter (March 21, 2023), http://jlpp.org/blogzine/right-to-strike-take-a-hike-evisceration-of-right-to-workplace-speech-continues.