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Supreme Court weighs union actions and federal labor law

Gorsuch among justices who question when the National Labor Relations Board gets priority to decide strike disputes

The Supreme Court considered a dispute stemming from a 2017 strike in which a company’s drivers returned running concrete trucks and then walked off the job. Above, the court on Dec. 29, 2022.
The Supreme Court considered a dispute stemming from a 2017 strike in which a company’s drivers returned running concrete trucks and then walked off the job. Above, the court on Dec. 29, 2022. (Celal Gunes/Anadolu Agency via Getty Images)

The Supreme Court expressed skepticism during oral arguments Tuesday that a company should not be able to sue a union in state court for damage caused during a strike, in a case that unions say could curtail a federal labor law meant to protect their actions.

The dispute stems from a 2017 strike in which the company’s drivers returned running concrete trucks to its facilities and then walked off the job. The company sued in state court, arguing the union timed the strike to ruin the concrete and potentially damage the trucks.

But the Washington state Supreme Court ruled that the conduct could fall under the National Labor Relations Act, which protects the lawful use of economic pressure by unions, and the company could not sue in state court.

Darin M. Dalmat, attorney for the International Brotherhood of Teamsters, told the justices that Congress intended to cover damages like ruined concrete when it wrote the law.

The union argued that it directed the drivers to take actions — such as driving the trucks back to company facilities and leaving the trucks’ drums running — that minimized the potential damage and meant the National Labor Relations Board should decide any dispute first.

“Congress recognized that inherent in the notion of a strike is an intent to inflict economic harm,” Dalmat said. “That’s what brings parties to resolution, that — the availability of the threat.”

Noel Francisco, the attorney for concrete company Glacier Northwest Inc., told the justices that the union so clearly failed to take “reasonable precaution” to prevent damages that the company should be able to sue without waiting for the NLRB process.

“The Court and the Board have long recognized that the intentional destruction of an employer’s property in the course of a labor dispute is not protected concerted activity,” Francisco said.

The Biden administration also argued Tuesday for the justices to overturn the Washington state court decision in a way that would protect some union actions during the strike but not others.

Assistant Solicitor General Vivek Suri said the justices should write an opinion that recognized “the mere spoilage of a perishable product after people walk off from the job is not something that the striking employees can be held responsible for,” but that the truck drivers’ actions were in a different category.

The Supreme Court will decide the case by the conclusion of the term at the end of June.

Several times during oral argument, Justice Neil M. Gorsuch and other justices questioned where to draw the line on when the NLRB gets priority to decide disputes.

Gorsuch said “we’ve been struggling” with how far the Supreme Court’s prior interpretations of the National Labor Relations Act should extend.

Chief Justice John G. Roberts Jr., in describing a legal test about what “reasonable precaution” strikers must take, compared it to a grocery store where workers who walked out might be protected if the milk spoiled but not if they poured it out.

Dalmat responded that should apply to the concrete trucks; workers have a right to use their economic leverage, even if it may cause some damage.

“Certainly Congress was aware of perishables, like cheese and milk and concrete in the economic harm,” Dalmat said.

The case (Glacier Northwest Inc. v. International Brotherhood of Teamsters) comes as most national labor policy has been decided through the courts and administrative appointments rather than legislation.

Democrats’ primary labor legislation last Congress, which included changes to NLRB proceedings, passed the House on a 225-206 vote in March 2021 but stalled in the evenly divided Senate.

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