The Court’s Decision To Fill In The Facts On Employer’s Behalf Will Further Weaken Unions And Strikes

labor Union Busting: Symbolic Image of broken “Labor Union”Our Supreme Court justices are on the side of big business. The takeaway from Sackett, besides Clarence Thomas being A-OK with child labor law rollbacks, is that the justices will prioritize property rights over the health of ecosystems and congressional intent. This week, they continued trampling over Congress with Glacier v. Teamsters.

Glacier is a preemption case —workers were sued by an employer on the theory that they planned a strike meant to damage company property and the union argued that such a suit violates the National Labor Relations Act. Like most strikes, the workers decided to not work. What gives rise to the company’s claim is that the effects of this particular decision to stop working happened after loading its trucks with wet concrete. Were the concrete to have dried in the trucks, it would have turned them into funny-shaped paperweights with a seat and a horn.

It was an 8-1 decision for Glacier with Justice Jackson as the lone dissenter. From the Washington Post:

Jackson wrote that the NLRB is still investigating that allegation by Glacier, and she accused her colleagues of rushing to decide the case.

“Fortunately, the pending Board determination of what actually happened in connection with this particular strike will establish — as a matter of fact and not mere allegation — what precautions (if any) the drivers actually took and what harm (if any) the Union’s conduct actually posed to Glacier’s trucks,” Jackson wrote.

This isn’t the first time the Court has read into the facts of a case to weaken protections that were once taken for granted. They read new intentionality into the coach’s behavior and disregarded student testimony in Bremerton. They prioritized property rights over ecological protection and clear congressional intent when they redefined the waters of the United States in Sackett. Here, they decided to read intent into the minds of employees and workers rather than just waiting to see what the facts actually were.

It is a little surprising to see Gorsuch’s name in the tally; he generally doesn’t condone judges doing balancing tests that position judges as experts on the facts of the case. Take the concurrence he wrote for Goldsmith, where he was particularly against interpreting laws in a way that favor digging into the heads of the parties involved:

As I see it, the second view of the law is the better one. Nothing in the copyright statute calls on judges to speculate about the purpose an artist may have in mind when working on a particular project. Nothing in the law requires judges to try their hand at art criticism and assess the aesthetic character of the resulting work. Instead, the first statutory fair-use factor instructs courts to focus on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” §107(1) (emphases added)

It is no surprise that Justice Jackson joined him in this concurrence and dissented from this opinion — at least she was being consistent. In the Warhol Foundation case, Gorsuch said that we should look at the purpose and character of the use rather than speculating about the artist and would-be copier’s intention. Jackson’s dissent here parallels this reasoning, asking not what the strikers might have intended (that would be determined by the Board and not the judges), but instead, starting the inquiry at the purpose and character of the thing. Was this a strike? Yes. Begin the analysis. I guess that side of Gorsuch goes out the window when a corporation is involved.

The Court is using a profit motive as a proxy for a worker’s confession that what they did was out of malice. These aren’t the exact words of the Court — Barrett gives a reliance explanation for why they decided to rule in this way:

That statute requires unions to take reasonable precautions to protect an employer’s property when workers go on strike. In this case, Barrett wrote, “the Union took affirmative steps to endanger Glacier’s property … the NLRA does not arguably protect its conduct.”

“[T]he workers actions “prompted the creation of the perishable product.”

But what’s the bright line for “taking affirmative steps” and “prompting a perishable product’s destruction”? Does a body of workers take an affirmative step to endanger property by showing up on time, thereby fooling their bosses into thinking that things are going as usual? What’s the decorum for striking now? Say that at the height of the Popeye’s chicken sandwich craze, there was a unionized Popeye’s that for weeks had been complaining about the working conditions when large crowds come to the storefront. The store opens at 9 a.m. and things are working as usual — food is being prepared for customers. At 10, there is a large crowd and the employees have had it. They walk out and all of the chicken and those dry-ass biscuits prepared up to that point have to be thrown out as a consequence. For a bit of flair, let’s also assume that a fryer got damaged as a consequence of the strike — jury is out on if the striking employees intentionally damaged the fryer; this is all we know. NLRB protected, or was this an endangerment of Popeye’s property?

The Glacier opinion doesn’t hinge on if the workers actually plotted to strike in a way that destroys company property — not deciding to wait on the investigation to determine if that’s what happened should confirm that. It presumes it by using the “reasonable precautions” language to sidestep what should be the threshold question of all NLRA cases: was there a strike? Instead, the analysis becomes fixated on questions of decorum: was the strike done in a way that was considerate of the employer’s bottom line? That, even by Barrett’s admission, throws into question the legal protections of strikes that would have previously been blessed by the NLRA.

She noted that the NLRB has found in the past that the act’s protections do not cease to exist just because a strike is timed to put pressure on the employer — when crops needs to be picked, for instance, or milk and cheese could spoil.

It sucks to be the lone dissenter, but being right has to soften the sting a little bit. I mean come on, is Glacier really that much different from a strike that leaves some crops out in the sun too long? Sure, cement trucks are more expensive than most cheeses, but we have to think through these labor issues at a level of abstraction. A widget is a widget and labor is labor. If we leave this case, which we do, with the threshold question that bars unions from NLRA protections being “did a union possibly intend to cause economic harm,” the Supreme Court just made striking illegal. Name a planned strike that either in intention or fact didn’t cause some form of economic harm. I understand the hesitation because the widgets here were expensive, but what is essentially different from cheese spoiling and a truck “spoiling” besides cost? Did Congress pass the NLRA with the intention of protecting costs? No. They did it to protect labor. And this ruling just cut it at the knee.

Court Rules For Firm That Sued Striking Workers Over Wasted Concrete [Washington Post]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at and by tweet at @WritesForRent.


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