Supreme Court rules 8-1 against unions' claimed right to destroy employer property during strikes, with just one justice not getting the memo

Someone who doesn't know what a woman is wouldn't be expected to know much about strike law, either.

That brings us to Supreme Court justice Ketanji Brown Jackson, who served as the lonely dissenter on a cut-and-dried case regarding sneaky union tactics that destroyed company property during a strike.

Even the other liberals on the Court went along with the majority, 8-1, in the ruling.  But not she.

According to NBC News:

WASHINGTON — In a loss for organized labor, the Supreme Court on Thursday ruled in favor of a concrete company in Washington state seeking to revive a lawsuit against the International Brotherhood of Teamsters alleging that a strike damaged its product.

The 8-1 decision, written by Justice Amy Coney Barrett, means the company, Glacier Northwest Inc., can pursue a lawsuit against the union in state court over an August 2017 strike in which drivers walked off the job, leaving wet concrete in their trucks. The company claims the union is liable for what it says was intentional damage to its product.

It was an interesting case, in that it didn't involved the usual union thugcraft we have come to expect from unions during strikes, such as naked vandalism on company property and assaults on company management.

This case involved a sneaky union maneuver to get a cement company's cement mixers started for a purported delivery and then call the strike during the day before the cement was delivered, allowing the highly perishable cement to harden in the trucks, which is what happens when cement is left in a truck even with its mixer turned on.  The hardened cement, then, would turn to something like rock and destroy the truck.  The company had 16 striking drivers who did this, all of whom ignored company orders to finish the deliveries before launching the strike.  The Court ruling noted that the National Labor Relations Act repeatedly holds, in case after case, that striking employees take "reasonable precautions" to protect company property as they launch their strike.  In the Glacier case, the truck drivers all brought the trucks back, with seven of them leaving the mixers on, and telling the company where the mixers were parked.  Nine, though, just walked off the job and let the company figure out for itself where the trucks were in order to unload the cement, which the company did to save the trucks, though the cement then hardened and was spoiled, leaving the company with a $100,000 replacement bill.

The Court's ruling began:

JUSTICE BARRETT delivered the opinion of the Court.

Glacier Northwest, a concrete company, depends on its truck drivers to deliver concrete to customers in a timely manner. But when relations between Glacier and its drivers soured, the drivers went on strike. Their labor union allegedly designed the strike with the intent to sabotage Glacier's property. Although Glacier managed to avoid damage to its delivery trucks by deploying emergency maneuvers, the concrete that it had already produced that day went to waste. Glacier sued the union in state court for destroying its property. But the company did not get very far: The state court dismissed Glacier's tort claims on the ground that they were preempted by the National Labor Relations Act. We reverse.

It was roughly similar to a restaurant striking employees ordering highly perishable food without an employer's knowledge before a strike, as one analyst noted, or a bunch of commissary employees leaving refrigerators full of food unplugged with a flip-switch not turned on owing to the strike's timing. 

The opinion, written by Justice Amy Coney Barrett, described how bad it was:

According to the allegations in Glacier's complaint, a Union agent signaled for a work stoppage when the Union knew that Glacier was in the midst of mixing substantial amounts of concrete, loading batches into ready-mix trucks, and making deliveries. Although Glacier quickly instructed drivers to finish deliveries in progress, the Union directed them to ignore Glacier's orders. At least 16 drivers who had already set out for deliveries returned with fully loaded trucks. Seven parked their trucks, notified a Glacier representative, and either asked for instructions or took actions to protect their trucks. But at least nine drivers abandoned their trucks without a word to anyone. Glacier faced an emergency. The company could not leave the mixed concrete in the trucks because the concrete's inevitable hardening would cause significant damage to the vehicles. At the same time, the company could not dump the concrete out of the trucks at random because concrete contains environmentally sensitive chemicals. To top it all off, Glacier had limited time to solve this conundrum. A mad scramble ensued. Glacier needed to determine which trucks had concrete in them, how close the concrete in each truck was to hardening, and where to dump that concrete in an environmentally safe manner. Over the course of five hours, nonstriking employees built special bunkers and managed to offload the concrete. When all was said and done, Glacier's emergency maneuvers prevented damage to its trucks. But the concrete that it had already mixed that day hardened in the bunkers and became useless. 

Had they not ruled that way, the unions could use that tactic as a pressure tactic instead of the mere deprivation of their labor, which is what a strike is.

According to the Court ruling itself, the pressure tactic was, well, illegal, or not protected under the National Labor Relations Act, which is what the Teamsters union appealed to:

The Union knew that concrete is highly perishable, that it can last for only a limited time in a delivery truck's rotating drum, and that concrete left to harden in a truck's drum causes significant damage to the truck. The Union nevertheless coordinated with truck drivers to initiate the strike when Glacier was in the midst of batching large quantities of concrete and delivering it to customers. The resulting risk of harm to Glacier's equipment and destruction of its concrete were both foreseeable and serious. The Union thus failed to "take reasonable precautions to protect" against this foreseeable and imminent danger. Bethany Medical Center, 328 N. L. R. B., at 1094. Indeed, far from taking reasonable precautions, the Union executed the strike in a manner designed to achieve those results. Because such conduct is not arguably protected by the NLRA, the state court erred in dismissing Glacier's tort claims as preempted. Pp. 6–8.

It all seems pretty reasonable, pretty cut and dried.  Even the two lefties who hate each other, Justice Sonia Sotomayor and Justice Elena Kagan, who were recently seen catfighting over which was the art philistine, went along.

Justice Samuel Alito's concurrence was particularly commonsensical:

The National Labor Relations Act (NLRA) protects the right to strike, but that right is subject to certain limitations and qualifications, see 29 U. S. C. §163, and this Court's decisions make clear that the Act does not protect striking employees who engage in the type of conduct alleged here. This Court has long recognized that the Act does not "invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer's property." NLRB v. Fansteel Metallurgical Corp., 306 U. S. 240, 255 (1939). To justify "despoiling [an employer's] property" or "the seizure and conversion of its goods," we have reasoned, "would be to put a premium on resort to force instead of legal remedies." Id., at 253.

But then we had the justice who didn't get the memo on common sense, Justice Ketanji Brown Jackson on the far left, who revealed herself to be a hack, arguing with this blather in her dissent:

For what it's worth, even if the majority's approach to deciding the Garmon question were the correct one, the majority misapplies the reasonable-precautions principle to the allegations here in a manner that threatens to impinge on the right to strike and on the orderly development of labor law.

A 1 A strike, by definition, is a "concerted stoppage of work by employees," or "any concerted slowdown or other concerted interruption of operations by employees." §142(2). When employees stop working, production may halt, deliveries may be delayed, and services may be canceled. At the risk of stating the obvious, this means that the workers' right to strike inherently includes the right to impose economic harm on their employer. 

That logic is echoed in a sputtering column by Elie Mystal in The Nation:

All strikes cause economic harm to the employer. That is literally the point of strikes. Suing workers or their unions for economic damages that happen as a result of them obviates the point of having a strike. And yet most people understand that striking workers cannot do extra damage to their employers beyond their refusal to work. You can't walk out on the job and set fire to the building on your way out. Everybody understands this. One way of looking at this case is to ask whether loading up trucks with cement and then walking out constitutes extra harm to the employer, harm that the teamsters should be liable for.

He favors the union's tactics of allowing sneaky damage under the pretext of just doing work, and calling it protected behavior under the authority of the National Labor Relations Act and its politically stacked National Labor Relations Board, same as Jackson.

This is nonsense.

What Jackson misses here is that strikes for companies are the deprivation of company labor, not company property.  If workers walk off the job, they had better turn the lights out and the machinery off and leave the fridges on.  They had better not get the cement mixers started and leave them running for ruin because now they they'll face a few consequences of their own.  All they have to do is go on strike, taking "reasonable precautions" not to spoil work or property left unfinished.  They can't wreck the place on the way out and call that their "protected behavior" and rely on the political hacks at the National Labor Relations Board to cover for them.

It goes to show that Jackson is a creature of union interests, not an impartial justice.  One wonders how she'd rule in cases like Antifa burning courthouses in its strike "duties" or Black Lives Matters rioters looting shops in their strike "duties," too.  Would she defend those characters with the same logic?  Don't hold your breath that she wouldn't.

Ironically, in a move that Jackson wouldn't be too happy about, given that it dilutes her vote and her prestige on the Court, Mystal proposes stacking the Court as his remedy:

This seems like a good time to mention that organized labor is a core constituency of the Democratic Party. Perhaps the party that claims to care about workers might want to look into doing something about the most anti-labor court anybody alive has ever seen? Perhaps expanding the Supreme Court and adding more justices who will actually protect labor rights should be a major part of the 2024 Democratic Party platform? Just a thought, but don't mind me; I'm just a guy who thinks nine unelected judges shouldn't be able to reverse the last 100 years of labor rights by judicial fiat.

In other words, if the NLRB can't be properly politicized and put to good work for the union out trashing company property, then the Courts will need to be properly politicized.

Most of the Court shows willingness to go along with what the law says.  Jackson is a hack of a different stripe.

Image: Pexels, CC0 public domain.

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