Supreme Court Imperils Right to Strike; Congress Must Preserve Worker Power

By Xavier Aparicio 

In recent years, labor organizing has surged as workers nationwide organize across many industries and employers. In just one year (2021 to 2022), National Labor Relations Board (NLRB) union election certification petitions and unfair labor practice charges filings rose by 48 percent and 19.8 percent, respectively, signaling a new wave of union activity as workers come together to assert their rights. 

During this pivotal moment, however, the Supreme Court has imperiled workers’ rights. On June 1, 2023, the Supreme Court released its opinion on Glacier Northwest v. International Brotherhood of Teamsters. The case deals with a labor dispute concerning truck drivers working for Glacier Northwest – a Washington-based concrete manufacturing and delivery company – who are organized with Teamsters Local 174. After contract negotiations failed, union members called a strike, alerted management, and returned their trucks to the company’s warehouse with the cement mixers on so that the concrete wouldn’t harden. 

The company removed the cement from the trucks before the concrete hardened, but it sued the union, seeking damages for alleged loss of concrete and failure to deliver the concrete to its clients. In an 8-1 decision, the Court sided with the company, ruling that an employer can directly sue a union in state court for property damages resulting from a strike.  

Through its decision, the Court dismisses longstanding precedent set in San Diego Unions v. Garmon in 1959. In that case, the Court ruled that when union activity is “arguably protected” by the National Labor Relations Act (NLRA), both state and federal courts “must defer to the exclusive competence of the [NLRB].” In its independent investigation, the NLRB itself concluded that the Teamsters’ strike had merit and subsequently filed a complaint against the company for undermining the workers’ statutory right to strike.  

The Glacier decision signals this Court’s proclivities to rule in favor of corporate interests and against people earning low incomes. Permitting employers to sue unions for damages during a strike allows employers to pose insurmountable costs on unions and the workers they represent. Additionally, the threat of costly legal battles could easily deter a union from striking in the first place. 

This decision also has dangerous implications for women, Black, and Latinx workers. By establishing a higher standard of wages, unions play a fundamental role in reducing racial and gender wage inequality. Indeed, union affiliation has proven to increase the wages of all workers, regardless of race or gender. According to CLASP analysis, wage premiums persist by a margin of 16.9 percent for Black union members, 18.6 percent for women union members, and 25.8 percent for Hispanic union members.  If unions’ abilities to build leverage in collective bargaining negotiations are weakened, racial and gender economic inequality could worsen, rolling back decades of progress. 

Although this ruling places the right to strike in danger, workers are still able to do so. However, this decision could lead to further rulings restricting worker strikes. Indeed, as revealed in their concurring opinion, if Justices Thomas, Gorsuch, and Alito got their way, legal precedent that enables the NLRB to ensure workers’ rights would be overturned. Their concurring opinion signals the high likelihood that a similar case will make its way back to the Supreme Court in coming years, which would yet again jeopardize workers’ rights. 

The majority opinion makes it clear that the Court has missed that the entire point of striking is economic disruption. However, while nearly all the justices seem to dismiss workers’ rights, newly sworn-in Justice Ketanji Brown Jackson, the lone dissenter in Glacier, recognizes the importance of the right to strike. Justice Jackson maintained that the right to strike is “fundamental to American labor law” and that the majority decision “risks erosion of the right to strike.” 

To empower workers during this historic moment for the U.S. labor movement, Congress should rectify the weaknesses posed by the Supreme Court by codifying strong workers’ rights protections. To this end, Congress should act to protect workers and their right to organize:  

First, Congress should pass the Protecting the Right to Organize Act (PRO Act), which would: 

  • impose fines ranging from $50,000-$100,000 on employers that illegally fire employees for organizing,  
  • establish timelines for union elections and collective bargaining processes to hold employers accountable,  
  • ensure that workers are properly classified as employees in the eyes of the federal government, and  
  • prohibit a variety of union-busting tactics.  

Second, Congress should update the NLRA to include domestic and agricultural workers. The historical exclusion and misclassification under the NLRA of farmworkers, domestic workers, gig workers, and other non-traditional workers is rooted in systemic racism and must be ended so every worker is protected. 

Finally, Congress should allocate more funds to the NLRB, which is currently underfunded and understaffed. A well-funded NLRB is needed to enforce U.S. federal labor law and safeguard worker protections. 

Workers are increasingly organizing to gain better working conditions; living wages; dignity and respect in the workplace; and a more powerful voice on the job. In the face of judicial overreach, Congress must act to safeguard worker protections and ensure workplace democracy.