News & Commentary June 2, 2023

[Omaha Steve]

By Swap Agrawal

Swap Agrawal is a student at Harvard Law School.

In today’s news and commentary, labor leaders, academics, and reporters react to the Supreme Court’s ruling in Glacier Northwest. On Thursday, June 1, the Supreme Court decided Glacier Northwest v. Teamsters. Justice Barrett’s majority opinion, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Kavanaugh, ruled that the NLRA did not preempt Glacier’s tort claims. The majority held that the union’s conduct was not arguably protected by the NLRA because the union failed to put forth evidence showing that it took reasonable precautions to protect against foreseeable and imminent danger to the employer’s property. See Linh’s coverage of the decision here.

As Professor Sachs pointed out yesterday, the majority opinion is very specific to its reading of the facts of the case. The opinion does not change the NLRA’s preemption regime. Rather, Justice Barrett admonished the union for executing the strike “in a manner designed to compromise the safety of Glacier’s trucks and destroy its concrete.” She acknowledged that mere risk of spoilage does not render a strike unprotected, but she explained that the union’s conduct here not only resulted in the destruction of a perishable product, but “prompted the creation” of the perishable product by showing up to work in the first place. It remains to be seen how lower courts will apply this “prompting” requirement going forward, as strikes are often timed to maximize the inconvenience to the employer. The majority attempted to cabin its holding by agreeing that “the Union’s decision to initiate the strike during the workday and failure to give Glacier specific notice do not themselves render its conduct unprotected.”

Union leaders and supporters were relieved to see that the majority decision did not impact the legal standard governing NLRA preemption or the right to strike. In a statement released yesterday after the decision, Service Employees International Union (SEIU) President Mary Kay Henry said: “We are pleased that today’s decision by the US Supreme Court in Glacier Northwest doesn’t change labor law and leaves the right to strike intact. The right to strike is fundamental to our freedom as working people. … We appreciate Justice Jackson’s powerful dissent with regard to the specific facts of this case, which now should continue to work its way through the National Labor Relations Board.”

FULL story at link above.