[Glacier v. Teamsters was not a crisis averted but another step in
the right’s plan to stifle labor power.]
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CHIPPING AWAY AT THE RIGHT TO STRIKE  
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Veena Dubal
October 5, 2023
Dissent
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_ Glacier v. Teamsters was not a crisis averted but another step in
the right’s plan to stifle labor power. _

Supreme Court justices pose for a photo on October 7, 2022, Olivier
Douliery/AFP

 

On June 1, the Supreme Court issued a significant decision against the
labor movement in _Glacier Northwest v. Teamsters Local Union No.
174_. In an 8–1 split, the Court found that the National Labor
Relations Act does not protect striking cement truck drivers from
being sued by their employer, who alleges damages for lost cement
caused by their work stoppage.

The decision, perhaps by design, has received little public outcry.
Some in labor, who had anticipated a worse outcome, even expressed
relief. On June 1, SEIU International President Mary Kay
Henry tweeted
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“We are pleased that today’s decision . . . doesn’t change labor
law and leaves the right to strike intact.”

But the right to strike is not intact in the United States, and
arguably, it never has been. Railway and airline workers, for example,
must exhaust lengthy and complicated negotiations and mediations
before they can engage in a legally protected strike. Other workers,
including public sector, agricultural, and domestic workers, as well
as independent contractors, have no federally protected right to
strike at all. For the private-sector workers who are covered by the
National Labor Relations Act, Congress and the courts have, over time,
narrowed what constitutes “protected concerted activity.” Some of
the most powerful on-the-job tools that workers can use to exert
coordinated power in an oppressive workplace—including intermittent
strikes, partial strikes, and slowdown strikes—have all been deemed
unlawful. Further, federal law bans secondary boycotts, making
solidarity actions illegal.

Recently, stringent legal restrictions on the right to strike have
proliferated across the globe. In 2022, strikes were severely
restricted or banned in 129 of the 148 countries the International
Trade Union Confederation measures—a 24 percent increase since 2014.
These attacks on the right to strike have been largely procedural,
blunting the public’s understanding and response to these draconian
shifts. In 2020, during the longest and largest farmworker uprising in
India’s modern history, Prime Minister Narendra Modi’s far-right
political party, the BJP, passed an industrial-relations code
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requires workers to provide fourteen days’ notice before a strike,
giving employers the opportunity to blunt the effects of the action.
In January of this year, following a series of industrial disputes,
the UK’s Conservative government introduced the Strikes Bill
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“essential” sectors (broadly interpreted) have minimum service
levels during a strike, making it impossible for many workers to stop
work and diminishing their power.

The _Glacier Northwest _decision is part of this pattern of legal
attacks on collective work stoppages. And we should understand it as
the first move in an attempt to hobble the strike power of U.S.
workers even further. As with the destruction of other fundamental
rights (including abortion), an effective ban on the right to strike
could take place over time, through the cultivation of a legal culture
in which workers—and courts—become accustomed to more draconian
strike restrictions. But only if we let it.

Seeing the decision in _Glacier Northwest_ as a preview of judicial
attacks against workers to come allows us to mobilize against any
further erosion of labor power—and the critical leverage that strike
power gives us over democracy and racial and economic inequality. But
to understand the current relationship between labor power and labor
law, we must understand the complexities of the 8–1 decision and
what it portends.

The basic facts are simple. On July 31, 2017, the contract between
Teamsters Local 174 and the cement company Glacier Northwest expired.
During negotiations with the union to establish a new contract,
Glacier Northwest unilaterally rejected workers’ proposals without
explanation and refused to provide information that was necessary for
negotiations. Less than two weeks after their contract expired, the
union called a strike. After this work stoppage—which lasted a
week—the Teamsters won a four-year contract with record-setting
wages.

In response to the strike itself, and perhaps to undermine future
union militancy, Glacier sent disciplinary letters to some of the
striking drivers. The Teamsters alleged this was unlawful retaliation
for legally protected strike activity. Glacier Northwest also filed a
complaint in Washington state court alleging that the union had, among
other things, intentionally destroyed its property by orchestrating
the strike during the middle of a shift, when some of the trucks
contained wet concrete. The union, meanwhile, maintained that the
cyclical nature of concrete delivery (drivers deliver three to six
loads of concrete during each shift) meant that at any given time
during a work day, some drivers would be returning with empty trucks,
some would be waiting to have their trucks loaded, and some would have
trucks full of cement.

The union claimed that they instructed workers with loaded trucks to
return the trucks to Glacier Northwest with their cylinders running to
avoid damaging the trucks with hardening concrete. The drivers did so.
Upon removal, the concrete dried and became useless. The trucks were
not damaged; still, Glacier Northwest alleged, they _could _have
been.

Strikes are only as effective as they are strategic. When withdrawing
labor, a collective of workers wants to create a crisis so that the
employer will be incentivized to meet their demands—and do so
swiftly. _Glacier Northwest_ is ultimately about whether employees
(here, concrete truck drivers working for a concrete trucking company)
can legally strike when doing so risks damaging their employers’
property. But strikes _always _risk damage to an employers’
property, broadly construed. That is the point: to create an economic
emergency that forces capital to heed workers’ demands. In her
masterful, sole dissent to the Supreme Court’s decision, Justice
Ketanji Brown Jackson put it succinctly: the “right to strike
inherently includes the right to impose economic harm on [the]
employer.” This often means timing strikes when the employer has the
most to lose.

U.S. labor law has long had strict rules against damaging employers’
property, even preceding the _Glacier Northwest_ decision. Workers
cannot seize property or affirmatively destroy it by, for example,
taking over a plant or lighting its contents on fire. The National
Labor Relations Board, the independent agency tasked with adjudicating
the National Labor Relations Act, has developed a narrow requirement
for strike activity to be considered lawful if it results in property
destruction: “striking employees must take _reasonable
precautions_ before or when they strike in order to forestall or
address foreseeable, imminent, and aggravated injury to persons,
premises, and equipment that might otherwise be caused by their sudden
cessation of work.”

But who decides what counts as “reasonable”? In a 1959 case known
as _San Diego Building Trades Council v. Garmon_, the Supreme Court
clarified that the NLRA preempts state law when the two conflict. In
practice, this means that a state court presented with a lawsuit in
which an employer alleges civil damages for property destruction
caused by strike activity must pause proceedings so the NLRB can
determine whether the union’s conduct is “arguably protected” by
the NLRA and therefore lawful. The NLRB then conducts a fact-intensive
inquiry: did the striking employees take reasonable precautions to
prevent, say, the destruction of cement? If they did, the lawsuit
generally does not move forward. For years, _Garmon_ staved off
union liability for employer’s claims alleging damages for economic
loss caused by strikes.

In _Glacier Northwest_, though the Court did not formally
overturn _Garmon_, as many feared it would, it did something almost
as sinister: it did not wait for a decision from the NLRB, which at
the time of writing was also examining the challenged strike conduct
“with the benefit of developed facts and labor law expertise,” as
Justice Jackson put it. Instead, it applied the employer’s
allegations (some of which the union contested) to the “reasonable
precautions” analysis. The majority found that the timing of the
strike, the lack of notice (which is not required by the NLRA, except
in healthcare), the perishable nature of concrete and its ability to
destroy the trucks when hardened together suggested that the union did
not take “reasonable precautions,” and so the workers’ strike
conduct could be unprotected and their union sued. In doing so, the
court did not just make it more complicated for workers in industries
with perishable goods to call a strike; it also undermined the
administrative authority of the NLRB—and perhaps invited lower
courts to do the same.

This decision is a stabbing wound that will infect the right to strike
in the years to come, resulting in lengthy, costly litigation for
workers and their unions in state courts. And it’s not the last time
this conservative Supreme Court will rule on cases related to labor
power. Indeed, Justice Samuel Alito, in a concurring opinion (in which
he was joined by Justices Clarence Thomas and Neil Gorsuch) put forth
a roadmap effectively inviting the Chamber of Commerce to orchestrate
another Supreme Court appeal in which they would
overturn _Garmon_ entirely by allowing employers to sue unions for
economic harm caused by strike activity. In a footnote responding to
Jackson’s dissent, Alito threatened that if the Washington state
court responds to the Supreme Court decision by dismissing Glacier
Northwest’s lawsuit, “the decision . . . would be a good
candidate for a quick return trip here.” And under the right
circumstances, Alito indicated, the Court would allow employers to sue
unions for economic damages caused by strikes, all but crippling
strike protections.

Glacier Northwest thus contains the juridical seeds of the demise of
the right to strike in the United States. It is troubling that the
majority opinion, written by Justice Amy Coney Barrett, was also
signed by two of the three liberal-leaning justices, Sonia Sotomayor
and Elena Kagan, who judicial observers had predicted would vote in
favor of the union. Some analysts, tacitly acknowledging the
inherently political nature of the Court, have argued that Kagan and
Sotomayor’s votes constituted a “brokered compromise
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which prevented Alito and Thomas from getting five votes to overturn
Garmon entirely. But by signing on to the majority opinion without
comment, the two justices lent their significant weight to a challenge
of the authority of a critical administrative agency. Furthermore,
their signatures make the truth much less obvious: this decision
undercuts the already limited right of workers to collectively
withhold their labor.

Though the Supreme Court’s hierarchical culture often inhibits new
justices from authoring solo dissents early in their career on the
bench, Jackson—the first African American woman to serve on the
Court—did not mince words in holding her colleagues to account for
their poor analysis. “Today,” she wrote, “the Court falters.”
Employing progressive originalism
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Jackson offered a powerful overview of the purpose of the National
Labor Relations Act and the preemption doctrine, noting that the right
to strike is “fundamental.” She chided her fellow justices for
their break from precedent and strategic disregard for basic facts in
the case, and emphasized that the majority opinion “inappropriately
weigh[s] in on the merits” of questions better left to the NLRB and
then “misapplies the Board’s cases” to make their decision. By
effectively expanding the duty of the union to protect Glacier’s
property, she argued, the majority view “places a significant burden
on the employees’ exercise of their statutory right to strike.”
Perhaps most important, Jackson—more than once—highlighted the
critical importance of work stoppages to economic dignity. Without the
right to withhold their collective labor at will, workers are, she
wrote, unfree “indentured servants.” In this way, Jackson’s
dissent reminds us of something that some in organized labor
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to have forgotten: the right to strike is central to labor’s power.

Some unionists have raised concerns that sounding the alarm over
Glacier could make workers more reticent to strike. But these
anxieties ignore workers’ historic bravery. When fighting for their
lives, families, and communities, they have withstood the dangers of
the law and how it limits their collective activity. Before the
passage of the NLRA, during the Great Depression, U.S. workers engaged
in widespread strike activity, despite the use of injunctions and
police to deter and criminalize them and their unions. From mostly
white coal miners in Harlan, Kentucky, to immigrant women cannery
workers in California’s Santa Clara Valley, the 1930s saw some
27,000 work stoppages. Some workers—including an unknown number of
miners—lost their lives at the hands of state police and private
mercenaries acting on behalf of the bosses.

Though the United States has tragically seen a large-scale decline in
labor power since the 1980s, workers today are more militant and
mobilized than they have been in some time. According to the Economic
Policy Institute, U.S. strike activity increased by nearly 50 percent
last year
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percentage of workers represented by a union dropped one-third of a
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Even without the financial support and expertise of established
unions, workers are banding together and standing with their coworkers
who experience unlawful retaliation. Glacier must be understood as
part of a backlash to this bold activity.

What if we see this moment as a crisis, one with global, even
existential, implications? If we take the decision for what it is—an
attempt to chip away at the right to strike until it becomes
unrecognizable as a right at all—we can strategize to combat it.
This means not only clearly understanding the threat, but also
elucidating the ways in which strikes are integral to democratic
formations—both at work and in the broader polity. The right to
strike is not just a tool of the workplace, but a tool that the
working class can use to fight economic and_ _political
authoritarianism.

The right to strike, as a manifestation of collective solidarity, is
central to creating and wielding countervailing power to
concentrations of wealth, racialized inequality, and anti-democratic
governance. We don’t have control over the litigation plans of the
Chamber of Commerce or the decisions of the Supreme Court, but we can
grow public knowledge, self-determination, and power within our
communities. As Sean O’Brien, the reformist president of the
Teamsters, put it clearly, “[_Glacier_] is simply one more reminder
that the . . . people cannot rely on their government or their courts
to protect them . . . We must rely on each other. We must engage in
organized, collective action. We can only rely on the protections
inherent in the power of our unions.”

Like brother O’Brien, I am not confident that workers will find
their power in statutes or legal decisions in the coming years. But
rights do not make strikes possible, though they make them easier.
Some of the most effective strike activity of late has been unlawful
strikes, including the wildcat strikes of public-sector teachers in
2018 and the University of California graduate student strikes in
2020. In these instances, labor law has lurked in the background, but
has not destabilized workers’ commitment to wield their collective
power against injustice. As we consider what to do in response
to _Glacier Northwest _and the international wave of attacks on
labor, one thing is clear: militant organizing, in which strikes are
recognized as essential to class power, must be central to our
movement.

_VEENA DUBAL is a Professor of Law and (by courtesy) of Anthropology
at the University of California, Irvine._

_DISSENT is a magazine of politics and ideas published in print three
times a year. Founded by Irving Howe and Lewis Coser in 1954, it
quickly established itself as one of America’s leading intellectual
journals and a mainstay of the democratic left._

_Dissent is a 501(c)3 non-profit organization. We publish the very
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* Labor
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* unions
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* right to strike
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* Supreme Court
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