Image by Ivy Sanders Schneider

Hands Tied Behind Our Backs

Diana Reddy

In a moment of increasing popular outrage about the most conservative Supreme Court in modern American history, labor cases rarely take center stage. To be sure, America’s left-liberal political coalition pays more attention to these cases, and to labor unions generally, than it would have twenty years ago. But even today, labor’s supporters still have trouble naming all that’s at stake when the Court subverts labor law. Legal attacks on unions present more than technical questions of law, and concern more than the narrow rights of union workers. These cases are about our most basic freedoms as working people — and it’s time we said so.  

That Americans tend not to see labor’s struggle as a freedom struggle is, in part, a legacy of what I have called the law of apolitical economy, a liberal legal paradigm dating back to the New Deal, which treats “economic” issues as distinct from and less normatively important than “social” issues. After the enactment of pro-worker federal labor laws in the 1930s, liberal policy makers and jurists chose to downplay the constitutional and moral significance of what labor unions do — ironically, as a way of protecting them from judicial review by conservative courts. Issues that were once presented as matters of worker freedom and fundamental rights under the Constitution turned into discussions of rational economic policy, left to legislatures rather than courts. Minimizing the normative stakes of labor unions once helped preserve labor power. Today, it means that we enter the contest of ideas with one hand tied behind our back.

The major labor law case before the Court this past term, Glacier Northwest, Inc. v. International Brotherhood of Teamsters, exemplifies just how sticky the law of apolitical economy can be. Much of the legal discourse about Glacier has tended to focus on its implications for labor law’s preemption doctrine, for the fate of the administrative state, or — at best — for union power. Too often underemphasized is the framing of the case, invoked by Justice Sonia Sotomayor at oral argument, as a question of whether workers must keep toiling until their employer’s “profits are safe”; or, more boldly still, as Justice Ketanji Brown Jackson suggested in her sweeping dissent, as a question of whether the law should be used to coerce workers to keep working.  

In Glacier, the Court was faced with a seemingly technical question that nonetheless went right to the heart of labor law: what the right to strike actually means. In August 2017, truck drivers employed by Glacier, a ready-mix concrete company, were working under an expired contract and making little progress at the bargaining table. One morning, fed-up drivers walked off the job. Without them, some of the concrete that had been batched that day began hardening and had to be dumped out of the trucks. Glacier then sued the union in state court, arguing that under state tort law, the union should have to pay them back for the wasted concrete. 

The question presented to the Court was not officially about the right to strike, but was instead about preemption — the constitutional mandate that federal law trumps state law when the two are at odds. More than sixty years ago, the Supreme Court decided in San Diego Building Trades Council v. Garmon that federal labor law should have broad preemptive effect, and that the National Labor Relations Board (NLRB) should have exclusive authority to interpret labor law in the first instance. Because the NLRB tends to take labor’s interests more seriously than either federal or state courts, unions often benefit from Garmon preemption. In this case, Garmon preemption would have meant the company could not sue the union in state court for striking — until and unless the NLRB first ruled that the drivers’ strike was unprotected by labor law. 

Many feared that the Court would use Glacier to significantly narrow the scope of Garmon preemption overall, exposing unions to a flood of new lawsuits. Instead, the ruling was arguably a better flavor of loss. In an 8-1 decision, the Court insisted that the drivers’ strike was unprotected under existing precedent. According to Justice Amy Coney Barrett’s majority opinion, the drivers’ strike fell within an existing limitation on the right to strike — that strikers are not protected when they fail to take “reasonable precautions” against “foreseeable, aggravated, and imminent danger.” The Court held that by walking off the job when concrete was already in the trucks, the workers risked harm to the concrete and to the trucks. By shoehorning the facts of this case into existing NLRB and judicial precedent, the Court avoided ruling on the continued viability of Garmon preemption. It found only that Glacier’s state-court suit against the union could proceed. (A concurring opinion by Justices Clarence Thomas and Neil Gorsuch made clear that they would welcome the opportunity to overrule Garmon in a future case.)     

Although the union lost, the fact that Garmon preemption survived softened the blow for many on the left. But perhaps it shouldn’t have. As Justice Jackson’s lone dissent emphasizes, Garmon’s survival came at a cost — to the right to strike and to our collective understanding of what working people owe the people who profit from their labor. Under existing NLRB precedent, the “reasonable precautions” doctrine had been limited, and applied primarily in cases involving danger to life and limb. At oral argument, Glacier’s attorney, with seeming obliviousness, emphasized just how false the equivalency was between the facts of this case and existing doctrine: it is well-established law, he emphasized, that “steelworkers can’t walk out in the middle of a molten iron pour,” that “federal security guards can’t leave their posts in the middle of a terrorist threat,” and that a “ferryboat crew can’t drive their boat out into the middle of the river and abandon ship.” Just the same, he insisted, these drivers should not be able to stop working when there is a risk of some concrete hardening in their trucks.

By accepting this bizarre comparison, the Glacier majority contorted a purposefully circumscribed doctrine into something potentially much broader and more pernicious. Glacier suggests that workers can be sued for simply stopping work in the middle of their day while production is ongoing, when product loss or equipment damage might possibly result. And it is not just that workers can be fired for striking under these circumstances. Glacier means that workers can bear the liability for their employer’s losses. Put differently, Glacier finds that worker freedom has a price tag, one that many working people won’t be able to afford.

Near the end of Justice Jackson’s dissent, she beautifully signals the stakes of this decision for workers. The majority opinion is wrong, she insists, because it suggests workers have an ongoing duty to their employers, even after they stop working. But workers, she says, “are not indentured servants.” They are not “bound to continue laboring until any planned work stoppage would be as painless as possible for their master.” The implication of this statement is clear: Glacier moves the needle, making employment that much more legally coercive for workers. Employers can freely lock out workers (or, in a non-union context, fire them) when they are at their most vulnerable — when their bills are due, when they are sick, when there is a public health crisis. But for workers, their freedom ends when it imperils their employer’s capital.  

Still, what remained unsaid by Justice Jackson, unsaid by every litigant and every amicus brief, is that this concern about free labor is not mere policy preference or individual softheartedness. Rather, freedom from involuntary servitude is a right guaranteed by the Constitution. Historically, labor unionists argued that the right to strike had roots in the Thirteenth Amendment. Although conservative courts rejected those claims, the Amendment continues to stand as a bulwark against unfreedom at work, even today. Under existing law, Glacier may not raise constitutional issues, but it certainly implicates constitutional values.

The Glacier holding that workers could have to pay — potentially much more than they make — in order to stop working is about the freedom of all our labor. Yet in making their case to the Court, neither the union defendant nor any of the many amici curiae supporting the union even mentioned the Thirteenth Amendment. Glacier made its own constitutional claim (unsupported by existing law). And union amici deployed wide-ranging rhetorical, legal, historical, and empirical arguments. But no one dared raise the lost constitutional stakes of unions, not even in a footnote. (As I understand it, one union lawyer suggested doing exactly this, raising the Thirteenth Amendment implications of this case in a footnote; all the other attorneys shot them down.) We are so used to legally making ourselves small for the sake of winning that it’s hard to change tactics, even now that there’s virtually nothing left to lose.

To be clear, no matter what we argue, there will be no vindication of labor rights before this Supreme Court. Regardless, the task for labor’s supporters is to proclaim, loudly and clearly, why unions matter, using all the tools at our disposal. Organizing is how we build a society that values labor rights, and it is how we create political change. Eventually, the courts will follow.

Diana Reddy is an Assistant Professor at UC Berkeley School of Law, where she codirects the Center for Law and Work. She is a former union organizer and union lawyer.