(AGENPARL) – STANFORD (CA) gio 08 giugno 2023

Before the United States Supreme Court handed down its recent 8-to-1 decision in Glacier Northwest v. International Brotherhood of Teamsters Local 174, many labor advocates and labor law experts were steeling themselves for a broad rollback of workers’ right to strike. While the Court did give a narrowly tailored win to the employer in the case—allowing a property damage suit against the striking Teamsters to proceed in state court—“nothing in the decision changes important precedent designed to protect workers,” says William Gould, the Charles A. Beardsley Professor of Law, Emeritus, the former chairman of the National Labor Relations Board (NLRB), and the former chairman of the California Agricultural Relations Board.

Cement company Glacier Northwest originally sued the union in Washington State Court for property damage, claiming striking truck drivers had deliberately damaged the company’s cement supply and trucks by loading trucks with wet cement just prior to walking off the job. The primary issues the Supreme Court addressed were (1) whether the National Labor Relations Act (NLRA) preempted Glacier’s state tort claims alleging intentional property damage, and (2) the scope of unions’ right to strike.

Here, Gould discusses the implications of the case, the logic buttressing the consensus among the liberal and conservative justices— and why labor advocates still need to be vigilant about what might come next.

What, precisely, were pro-labor advocates concerned the Supreme Court might be poised to do in this case?  

There were two main concerns. First, that this Court would overturn the doctrine of preemption as it relates to National Labor Relations Board (NLRB) jurisdiction. Since 1959, when the Court decided San Diego Building Trades Council v. Garmon, it has been established that where a labor matter in dispute is arguably protected by the NLRA, or prohibited by its unfair labor practice prohibitions, the exclusive jurisdiction to resolve the dispute lies not in the courts, but in the hands of the NLRB, the administrative agency of which I was chairman in the 1990s.

Garmon has been an important vehicle for unions in their quest to evade hostile anti-union state jurisdictions—and important to their successful recruitment of members, even in the wake of the Taft Hartley Act’s anti-union strictures. 

So in this case, where the cement company sued in state court, the issue was whether the NLRB should have jurisdiction. While the Supreme Court did allow the case for property damage to proceed in state court, it did so under the very idiosyncratic and particular facts of this case and it found that the actions in question fell outside the scope of protected activity by the NLRA. The facts in this case are very different from the overwhelming number of labor disputes which involve the right to strike.

And the second concern?

There was a real concern that this case could be a vehicle for rolling back the scope of workers’ right to strike, perhaps going so far as to say that if employers’ property interests or business interests were damaged by the strike, then the strike was unprotected. This concern also did not come to pass. Of course no strike is worth its salt unless it coincides with a time when the employer is vulnerable, and where the employer’s business interests are undermined.  In essence we can say that the decision, while not helpful to unions, is not harmful to them in the overwhelming number of disputes which arise. Organized labor, on balance, feels that it dodged a bullet here and some union leaders have admitted as much in public.

And yet it seems some of the news coverage has called this decision a ‘blow to unions’ or a rollback on the right to strike? 

Some of that is hyperbole, or a mis-understanding of the case. I think some of it comes from the opinions issued by Justices Alito, Gorsuch, and Thomas, who wrote separate opinions concurring, but saying the Court should have gone further and reversed protections for strikers. Alito went so far as to essentially invite employers to file future litigation. Given the trajectory of this Court’s decisions in labor cases, it is instructive to pay attention to these three opinions.

Can you discuss this recent trajectory of the Court with regard to labor rights?

Epic Systems Corp. v. Lewis was a 2018 case about how the NLRA and the Federal Arbitration Act relate. The Court held that employees cannot engage in protests against what they deem to be unfair employment conditions where the employer has unilaterally promulgated an arbitration system—what Justice Ginsburg properly called in her dissent, “unbargained for arbitration,” where workers who are not represented by a union have no rights in the workplace. In another 2018 case, Janus v. AFSCME, the Court held, under a constitutional theory never previously employed, that unions cannot negotiate so-called Fair Share Agreements, where non-union employees pay a share to finance the union’s bargaining on their behalf. The Court ruled that such union fees in the public sector violate the First Amendment right to free speech, overturning a 1977 decision that had allowed such fees.

Even if Glacier turned out not to be a major blow to unions, isn’t it now likely that unions will face more lawsuits in state court?

I think particularly with the invitations to future litigation that Justice Alito was sending out in footnotes, employers may roll the dice in favor of state court damage actions. And I think that is unfortunate. But I also think this was a very unusual case and might not have great significance for other labor disputes.  

Interestingly, though, if the NLRB, in its own proceedings, comes to different factual conclusions and comes to a different legal conclusion than the Supreme Court employed here, this case itself could come back to the Court and then there might be difficulty in putting together the same majority. 

What did you think of Justice Ketanji Brown Jackson’s lone dissent in Glacier?

Justice Jackson has a very different view and she articulated a position never previously accepted by the Court, or any court so far as I am aware. That is that any time the General Counsel to the NLRB issues a complaint, then that should automatically pause state court litigation under the Garmon preemption theory, no matter the facts or the findings of a court. But the General Counsel is the prosecutor before the board, not the final arbiter of what the law is. So this is a new idea, which I think  probably is not valid under existing Supreme Court authority. The General Counsel has a very important role, but not that of final arbiter of what is protected and prohibited under the NLRA. It is interesting, though, this inherent tension between the logical implications of Garmon, which Justice Jackson articulated very well, and the need for some kind of limited judicial examination of the arguably protected preemption test under Garmon itself. I do think Justice Jackson’s dissent promotes in a very well reasoned and eloquent way why the NLRB is the expert agency and her view of preemption is faithful to Garmon, though not all the post-Garmon judicial authority.

William B. Gould IV is Charles A. Beardsley Professor of Law, Emeritus, at Stanford Law School. A prolific scholar of labor and discrimination law, Gould has been an influential voice in worker–management relations for more than 50 years and served as Chairman of the National Labor Relations Board (NLRB, 1994–98) and subsequently Chairman of the California Agricultural Labor Relations Board (2014-2017). Professor Gould has been a member of the National Academy of Arbitrators since 1970. As NLRB Chairman, he played a critical role in bringing the 1994–95 baseball strike to its conclusion and has arbitrated and mediated more than 300 labor disputes, including the 1992 and 1993 salary disputes between the Major League Baseball Players Association and the Major League Baseball Player Relations Committee.  His 11th and most recent book is “For Labor to Build Upon: Wars, Depression and Pandemic” (2022).

Fonte/Source: https://law.stanford.edu/2023/06/08/slss-william-gould-discusses-how-labor-interests-dodged-a-bullet-in-recent-scotus-decision/