Glacier Northwest v. Teamsters: An Assault on the Adminstrative State?

By Lambert Strether of Corrente.

Glacier Northwest, Inc. v. the International Brotherhood of Teamsters has been little covered in the press since the Supreme Court agreed to review it, but the Supreme Court’s ruling might have vast implications for labor relations, and for a conservative assault on the administrative state generally. IANAL, but at the request of alert reader square coats, I’ll do my best to review the issues involved. (Note that the Washington State-based Glacier Concrete d/b/a “CalPortland” is not a nice company at all; here they are losing a wage theft case in 2019). Here is the Supreme Court docket (No. 21-1449) and Glacier Northwest’s petition for a writ of certiorari; here is the Washington Supreme Court ruling that Glacier appealed. First, I’ll set the context by looking at current labor actions in Washington state. Then I’ll briefly look at the 2017 incident that sparked the Glacier Northwest lawsuit. After that, I’ll look at the lawsuit itself, and Jones Day, Glacier Northwest’s lawfirm. I’ll conclude by looking at implications of a Supreme Court ruling against the Teamsters, and some larger implications for the conservative assault on the administrative state.

To begin, Seattle’s concrete firms (of which Glacier is one) have been hit with a round of strikes in 2022, driven by Teamsters Local 174. From the Guardian, “Seattle’s concrete workers strike over low wages and unfair labor practices“:

Seattle, which has the second most construction cranes of any city in the US and has been leading the country’s construction boom since the pandemic hit. Hundreds of contractors have been laid off as construction projects have ground to a halt or been forced to reduce operations without concrete, and layoffs are expected to continue as the strike drags on.

Among other effects, the strike halted construction of Seattle Light Rail, along with other major infrastructure projects. Employer anti-union tactics were not gentle, involving as they did assaults on workers (“Judge: Seattle concrete companies intentionally drove into striking workers at picket line“) and drowning the noise of demonstrators on picket lines with air compressors.

Glacier Concrete was involved in these 2021 strikes too. From Kim Kelly, “Concrete Actions Toward Worker Power“:

More than a century later, another Seattle strike began on December 3, 2021, after contract negotiations broke down between the Teamsters bargaining committee and a representative of the five companies—Cadman Materials, Inc., CalPortland [Glacier Concrete], Lehigh Cement, Salmon Bay Sand and Gravel Company, and Stoneway Concrete—that control the sand and gravel industry. Cadman and Lehigh are both owned by German construction giants Heidelberg Cement Group, while CalPortland is owned by the Japanese Taiheiyo Cement Corporation.

Meanwhile, the entire $23 billion Seattle-area construction industry is feeling the strain as Local 174 continues to hold the line, because, as [Brett Gallagher, a longtime cement mixer driver and member of the bargaining committee] told me, nothing gets done without him and his coworkers. “This industry is literally the foundation that every other building trade builds upon,” he explained. Without concrete, none of the construction projects dotting Seattle can get off the ground, and as a result, building project after project has been delayed while the strike continues. “No matter how long this strike takes, the work will keep piling up. None of that work goes away, and we’re gonna have to dig so hard to get out from under this mountain. It was not a decision the local took lightly, to go out on strike.”

The outcome was a happy one[1] for the Teamsters: “Teamsters Make Gains by Ratifying New Concrete Agreement“:

More than a year after their contract expired, Teamsters Local 174 members in the King County concrete industry have voted to ratify a strong new agreement.

The contract closes out a long period of labor unrest, including a nearly five-month unfair labor practice (ULP) strike and countless one-day ULP walkouts by Teamsters as employers refused to bargain in good faith. The new agreement protects more than 225 concrete workers at Cadman, CalPortland, Salmon Bay Sand and Gravel, and Stoneway Concrete through 2025.

Most of the membership’s top priorities are resolved, including medical coverage for active employees, pension increases, and new rules to solve workplace issues. More than three quarters of voting concrete workers ratified the deal.

So, there’s a history of strong labor action in the Seattle area (going all the way back to the general strike of 1919, as Kelly points out). I mean, you can see why management would be in a constant state of tickitude. It’s no surprise, therefore, that incidents like the one that gave rise to Glacier Northwest v. Teamsters arose; every labor action has an opposite management reaction, and the two are not necessarily equal. We turn now to the 2017 incident as described in BallotPedia. The drivers stopped working with cement still in their trucks; Glacier Northwest argues this destroyed the concrete (their property, hence their tort suit):

Glacier Northwest Inc. (“Glacier”), also known as CalPortland, sells and transfers ready-mix concrete to businesses in Washington. The International Brotherhood of Teamsters Local 174 serves as the labor union representative for truck drivers employed by Glacier in King County.

On August 11, 2017, while Glacier and the truck drivers were negotiating a new collective bargaining agreement, the drivers went on strike and stopped working, resulting in the loss of some of Glacier’s concrete. Glacier alleged that Local 174 had the drivers purposely time the strike in order to destroy the concrete.

The Teamsters argue that in fact they did not. (Although the facts themselves are not at issue after the Supreme Court granted the writ, we might as well know what happened.) The Teamsters write in their brief in oppposition to Glacier Northwest’s Petition:

As Glacier would have it, this case involves “a union . . . intentionally destroying an employer’s property in the course of a labor dispute.” Pet. i. Nothing could be further from the truth. The labor dispute in question was a strike by cement truck drivers and the property was concrete contained in some of the trucks at the beginning of the strike. The striking drivers returned their trucks to Glacier’s yard and left them running precisely so that the concrete would not harden. By so doing, the strikers not only safeguarded Glacier’s trucks but they allowed the Company to use the concrete as it saw fit. Glacier decided to dispose of the concrete because it had failed to arrange for replacement workers or additional management personnel, notwithstanding the expiration of the collective bargaining agreement and its no-strike clause. Glacier could have delivered the concrete to customers had it arranged for those contingencies.

Although I agree that leaving the cement in the trucks while the trucks were running is a massively ****-busting move — not unknown in labor relations in the Seattle area — I buy the Teamsters argument that all Glacier Northwest had to do was get some scabs to keep the cement-filled barrels turning. However, this is not relevant to the point of law involved.

Let’s now turn to the point of law involved. From Bloomberg, “Justices to Mull Labor Law Preemption of Property Damage Claims“:

The US Supreme Court agreed to review whether federal labor law overrides common-law claims against unions for allegedly destroying employers’ property during labor disputes.

The justices on Monday granted ready-mix concrete supplier Glacier Northwest Inc.’s request to overturn a Washington Supreme Court ruling that threw out the company’s tort claims against an International Brotherhood of Teamsters affiliate. The company accused the union of coordinating with truck drivers to time their strike so mixed concrete would harden and go to waste [but see above].

The case deals with the boundaries of National Labor Relations Act preemption under the Supreme Court’s 1959 decision in San Diego Building Trades Council v. Garmon, which blocks state and local regulation of activities that the NLRA protects or prohibits.

The Washington Supreme Court ruled that the strikearguably was protected by federal labor law, the Teamsters affiliate said in its brief. The National Labor Relations Board will decide whether the strike was actually protected, the union said.

To quote the decision of the Washington State Supreme Court:

We conclude the NLRA preempts Glacier’s tort claims related to the loss of its concrete product because that loss was incidental to a strike arguably protected by federal law.

It’s easy to see that if the NLRA does not preempt tort claims, every labor union that strikes will get nibbled to death by frivolous tort claims, and defending against them will deplete union treasuries. It’s also very hard to to what once was the “moderate” Roberts court agreeing to hear the case if they didn’t want to limit union’s power to strike (not to mention their more expansive agenda which we will get to). And it’s also easy to see how the right to sue for damage to property could very easily be expanded to, well, just about anything. Farfetching here, but perhaps not: We all know Google gives its programmers free and excellent food to keep them at their desks. What if the food service workers strike, and Google sues their union for interfering with its ability to create intellectual property?

Sidebar: Here is an excellent TikTok (sorry!) from Connor Lewis (@uniondad), explaining the pre-emption issue:

@uniondad pack the court. #organize #unionstrong #scotus ♬ original sound – Connor Lewis

(I can’t figure out how to stop TikTok from looping, so if you sense that the video has gone beyond 2:58, stop it manually.) End sidebar.

Union advocates should also be concerned that Glacier Northwest is being represented before the Supreme Court by Jones Day, a vicious, brutal, and effective union-busting law firm. From the Columbia Journalism Review, “A law firm in the trenches against media unions“:

With more than 2,500 lawyers on staff, offices in 18 US cities, and 25 more offices internationally, Jones Day is one of the largest law firms in the world.

At a time when uncertain market forces have driven more and more newsrooms to organize, Jones Day has become notorious for aggressive anti-union tactics that journalists and union leaders say have helped downgrade media union contracts and carve employee benefits to the bone….

“Negotiations where Jones Day is at the table are uglier than anything else we see,” says Robert Struckman, president of the Washington-Baltimore News Guild, under which multiple publications are organized, including the Post. ‘Negotiations are always hard, but they’re not always ugly. Jones Day makes the process ugly.’

And:

Jones Day’s approach often goes beyond serving the pragmatic needs of client companies, he adds, to the point that it seems ideologically anti-union. With each new contract negotiation, the firm’s lawyers seem to be pushing the ball forward for their own sake, he says. If a specific stipulation brings benefits to a new low at one company, it is likely that Jones Day lawyers will portray them in subsequent negotiations with other companies as the new industry standard.

But Jones-Day has bigger fish to gut, fry, and consume than unions. From the New York Times, “How a Corporate Law Firm Led a Political Revolution“[2]:

For much of its history, Jones Day was a juggernaut in the field of corporate litigation. A global goliath with more than 40 offices and about 2,500 lawyers, it raked in billions a year in fees from tobacco, opioid, gun and oil companies, among many other giant corporations in need of a state-of-the-art defense. More than most of its competitors, the firm had an army of litigators who had perfected the art of exploiting tiny legal wrinkles, of burying outmatched opponents in paperwork and venue changes and procedural minutiae. But over the past two decades, Jones Day has been building a different kind of legal practice, one dedicated not just to helping Republicans win elections but to helping them achieve their political aims once in office. Chief among those aims was dismantling what Don McGahn — the Jones Day partner who helped run Trump’s campaign and then became his White House counsel — disparagingly referred to as the “administrative state.” To do that, the firm was bringing all the ruthless energy and creativity of corporate law to the political realm.

As we can easily see, nuking the power of the NLRB would fit neatly into this larger agenda (besides irking the unions, always a plus). Jones Day, unsurprisingly, will find support for this agenda on the Court. From Bloomberg, “Gorsuch v. the Administrative State Is Really Heating Up“:

In the 6-3 OSHA decision, Gorsuch wrote a separate concurrence with a separate purpose. He didn’t just reject the claim by the administration of President Joe Biden that a workplace mandate could be imposed under OSHA’s power to regulate ‘occupational’ safety, as the majority did. He said something fundamental about the Constitution and what it allows Congress to do when allocating power to any administrative agency.

According to Gorsuch, the right question to ask, in considering whether an agency has power to do something, is not merely whether Congress has passed a statute that authorizes it. The right question is whether the Constitution allows Congress to delegate broad power at all.

The traditional Supreme Court answer to that question has two parts. First, the court said in 1928 that when Congress delegates power to an agency, it must articulate an “intelligible principle” to limit the agency’s actions. Second, in a 1935 decision striking down a key part of President Franklin Roosevelt’s New Deal, the court added, “Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.”

For more than three-quarters of a century, the justices have interpreted their own words generously, to maximize the powers that Congress is allowed to give to the agencies that regulate the air we breathe, the water we drink and the safety of our workplaces, among many other functions. The court has treated almost any words used by Congress as satisfying the intelligible-principle requirement. And the justices have allowed Congress to delegate enormous lawmaking powers without saying that the delegation counted as an impermissible transfer of essential legislative functions.

Gorsuch, Alito and Thomas want to give new vitality and force to these two requirements, to scale back radically what Congress is constitutionally permitted to allow agencies to do. The key line of the Gorsuch opinion reads: “If the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.”

Perhaps Glacier Concrete will serve as the pretext for Gorsuch et al. to interpret the words of the Court “less generously” with respect not only to the NLRB, but for all Federal agencies. Such an outcome would be wondefully clarifying; after all, the dark side of the administrative state is — no surprise here — the PMC performing their usual gatekeeping functions. Richard Trumka wrote in “Why Labor Law Had Failed” (1987), on the pre-emption issue:

This is the world I envision: the world without preemption and the expert agency. It is a world of struggle within the political and social arenas and of jury trials in the legal arena. We do not need an expert agency anymore. It only hurts labor and working people. I say abolish the Act. Abolish the affirmative protections of labor that it promises but does not deliver as well as the secondary boycott provisions that hamstring labor at every turn. Deregulate. Labor lawyers will then go to juries and not to that gulag of section 7 rights-the Reagan NLRB. Unions will no longer foster the false expectations attendant to the use of the Board processes and will be compelled to make more fundamental appeals to workers. These appeals will inevitably have social and political dimensions beyond the workplace. That is the price we pay, as a society, for perverting the dream of the progressives and abandoning the rule of law in labor relations. I have a profound faith in the judiciary and jury system as it exists at common law. It has been the enduring bulwark against biased decisionmaking by “experts.” The Board has transformed itself into a bureaucratic mechanism for defeating the rights of workers. Let unions get political, let unions get involved in the selection of state court judges, let labor law cases go to the jury.

We shall see. To the extent Glacier Concrete gets covered at all, we’ll see whether Trumka’s perspective is shared. Especially by the Teamsters![3]

NOTES

[1] I realize that this quote is in essence a union management press release, and that more militant members may feel a better contract was possible. Still, “Most of the membership’s top priorities are resolved.”

[2] From the article lead: “the international law firm of Jones Day, best known for representing Donald Trump’s presidential campaigns.” You’d think that would be enough to get some tribal juices flowing on Glacier Northwest v. Teamsters, but that would involve reinforcing the bargaining power of [ugh] workers, so no, not today. Note the URL: jones-day-trump, implying that the headline was nobbled by an editor.

[3] The role of the PEB raises similar issues for railway unions.