A single case will be heard by the Supreme Court Tuesday and, while it deals with a labor union strike, it will take the Justices back to constitutional origins and the tension between national and state government powers.
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Tuesday’s case: Glacier Northwest, Inc. (CalPortland), v. International Brotherhood of Teamsters Local 174 The hearing, scheduled for 65 minutes, will begin at 10 a.m.
Background: When the founders gathered at Philadelphia in 1787 to write a new Constitution, one of their basic aims was to correct the error of the Articles of Confederation: the Articles made each state totally independent and separately powerful, and created a weak, ineffective national government. Part of the founders’ remedy is the Constitution’s “Supremacy Clause,” Article VI.
That clause makes the Constitution and “laws of the United States” the “supreme law of the land” and thus supreme over the states’ constitutions and laws. Today, 236 years later, Article VI is understood to mean that federal law preempts or displaces state law, if the federal law covers the whole field or if the two are incompatible and cannot be enforced separately without conflicting. A large body of constitutional law has built up around this “doctrine of preemption.”
In the case the Justices will hear Tuesday, that lofty concept comes down to the real-world level of a strike by a labor union against a company that makes “ready-mIx” concrete and delivers it in specially-built trucks that mix it on the way to a construction site. If those loaded trucks are idled before delivery, according to the company, the concrete can harden in the mixing drum within 20 to 30 minutes after the drum stops, potentially destroying the machine. If the concrete has not yet hardened, it will have to be dumped and mostly wasted.
How can that be a constitutional dispute? The company wants to require a labor union, under state law, to pay for the loss of the concrete when loaded trucks were idled by their unionized drivers while on strike. That state law in Washington was found by a state court to be preempted by federal labor law.
As the case has unfolded in the Supreme Court, it has grown quite complicated and now has the potential to unsettle a major Supreme Court precedent, and even to raise a novel constitutional question on whether the federal government might have to compensate the company for the loss of some of the concrete during the drivers’ strike.
In July 2017, the labor contract between the company and Teamsters Union Local 174 expired. Amid negotiations over a new contract for truck drivers in three cities in Washington State, the union voted to strike. (The two sides would later sign a new contract, but its terms are not at issue in this case.)
When the strike began on the morning of August 11, the company would later claim, at least 16 drivers who were driving loaded trucks toward construction sites turned around, returned to their plants and left the trucks – still loaded. (Some of the drivers took some steps to deal with the situation, but at least 7 of them were later disciplined by the company for simply walking away from loaded trucks.) Company officials said it took five hours to clean up the mess, dumping some of the loads in a way to avoid environmental harm, but unable to save some of the concrete.
The company later sued the union in state court, claiming violations of state tort (wrongful conduct) law by interfering with the firm’s business, conspiring to destroy property, and causing substantial business losses.
The union opposed the lawsuit and filed its own legal challenge to the disciplining of seven drivers, claiming before the National Labor Relations Board that the firm had interfered with the right to strike, protected by federal labor law. The union relied primarily on a 1959 Supreme Court precedent, San Diego Building Trades Department v. Garmon, declaring that state courts may not accept claims based on workplace actions that actually or at least “arguably” are protected by federal labor law. The Court, however, has made clear that the Garmon ruling does not protect striking workers’ use of actual violence that results in destruction of property.
Ultimately, the union won in the state Supreme Court, which ruled that the state tort claims were preempted by federal labor law under the Garmon precedent. The state court did not find a direct conflict with federal law, but only that it was “arguable” that the company had interfered with the right to strike – that is, an “implied preemption” of state law.
Taking the case on to the Supreme Court, the company raised the single question of whether there had been an “implied preemption.” But in the course of its legal arguments, the company also suggested that the Garmon decision should be narrowed so that it did not protect “intentional destruction” of property during a strike, even if there had been no violence, as such, and that, if it did protect such conduct, the precedent raised a serious question of whether that amounted to government seizure of private property, in violation of the Constitution’s ban on “taking” private property for government use. Federal labor law, as enforced by the NLRB, provides no remedy through compensation for employer losses resulting from a strike, so the only way to obtain such a remedy would be to interpret the Constitution to create it.
The Supreme Court granted review of only the specific issue the company had spelled out in its appeal. The Biden Administration’s Justice Department entered the case, taking a position somewhat in the middle between the company and the Teamsters Union. It argued that the truck drivers’ abandonment of their loaded trucks as a strike tactic without taking some steps to avoid the loss of property was not protected by federal labor law, but also contended that the still-pending Teamsters union case before the NLRB might turn out to be the controlling factor, maybe in the union’s favor, which state courts would then have to take into account in finally resolving the company’s claims under state law.
The question before the Court: Does federal labor law, by implication, bar a state law claim of intentional destruction of private property during a labor strike?
Significance: The company, Glacier Northwest, has at least succeeded in persuading the Supreme Court to have a new look at the scope of the Garmon precedent, and thus has a chance of obtaining a narrowing of that ruling that could make clear that intentional harm to private property by strikers can be challenged under state law, even if that did not result from violence.
The Justice Department’s straddle in the case gives the company some support on that point, even though the Department told the Court it sees no need to revise the Garmon ruling because, in its view, that provides no cover for the drivers’ abandonment of their loaded trucks, without telling anyone or doing anything to avoid damage.
The Court’s new conservative majority is not particularly sympathetic to workers’ rights, while showing considerable sympathy for private businesses’ interests. That makes the case potentially threatening to unions’ interests, but it may not extend to fashioning an entirely new constitutional remedy for what happened when these drivers walked away from their trucks to make a point in collective bargaining.
On Wednesday, the Court again will hear only one case; it is another one with constitutional implications, testing whether government agencies in a U.S. territory – here, Puerto Rico – have immunity to being sued over official actions, without their consent. (U.S. states have such immunity, as does the federal government.)