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Unions are relieved as the Supreme Court leaves the right to strike intact

The Supreme Court is seen in Washington, D.C., on April 23.
Daniel Slim
AFP via Getty Images
The Supreme Court is seen in Washington, D.C., on April 23.

Updated June 1, 2023 at 6:01 PM ET

The U.S. Supreme Court on Thursday handed a victory to business interests in a labor dispute, but the win was more of a whimper than a roar.

By an 8-to-1 vote, the high court ruled against unionized truck drivers who walked off the job, leaving their trucks loaded with wet concrete, but it preserved the rights of workers to time their strikes for maximum effect.

"Virtually every strike is based on timing that will hurt the employer," said Stanford Law School professor William Gould, a former chairman of the National Labor Relations Board, and there was "great concern that the court would rule broadly to limit the rights of strikers. "But that didn't happen," he noted in an interview with NPR.

At first glance, the Supreme Court did seem poised to issue a decision more damaging to unions. Thursday's ruling followed three earlier decisions against labor in the last five years, including one that reversed a 40-year-old precedent. And the truckers' case posed the possibility that the court would overturn another longstanding precedent dating back nearly 70 years. So labor feared the worst: a decision that would hollow out the right to strike. Thursday's decision, however, was a narrow ruling that generally left strike protections intact.

The case was brought by Glacier Northwest, a cement company in Washington state, against the International Brotherhood of Teamsters. After the union's contract had expired and negotiations broke down, the union signaled its members to walk off the job after its drivers had loaded that day's wet concrete into Glacier's delivery trucks.

The company sued the union in state court, claiming the truck drivers had endangered company equipment. Wet concrete, it explained, hardens easily, and the company had to initiate emergency maneuvers to offload the concrete before it destroyed the trucks.

But the Washington Supreme Court ruled that Glacier's complaint should have been filed with the National Labor Relations Board. For nearly 70 years, the Supreme Court has said that federal law gives the Board the authority to decide labor disputes as long as the conduct is even arguably protected or prohibited under the federal labor law.

The business community was gunning for, and hoping to eliminate, that rule. But it didn't get its way. This was a case of winning a relatively minor battle but losing the war. The high court did not overturn or otherwise disturb its longstanding rule giving the NLRB broad authority in labor disputes, leaving unions free to time when they will strike.

At the same time, the court's majority decided the case in favor of the company in a very fact specific way. The court ultimately said the union's conduct in this particular case posed a serious and foreseeable risk of harm to Glacier's trucks, and because of this intentional harm, the case should not have been dismissed by the state supreme court.

Though the court's vote was 8-to-1, breakdown of opinions was more complicated

Writing for a conservative/liberal majority, Justice Amy Coney Barrett was joined by Chief Justice John Roberts and Justices Brett Kavanaugh, Sonia Sotomayor and Elena Kagan.

Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas, the court's three most conservative justices, wrote separately to express frustrations that the court did not go further and reverse a lot of the protections for striker rights. Justice Alito virtually invited Glacier or other business interests to come back and try again.

Writing for the dissent, Justice Ketanji Brown Jackson argued the union acted lawfully in timing its strike to put maximum pressure on the employer, pointing out that Glacier could have locked out the workers, or had non-union workers on standby in the event of a strike to prevent any surprise strike timing.

There are 27 cases still to be decided by the court, as it enters what is usually the final month of the court term. And many of those cases will be highly controversial. In Thursday's case, though, the court, quite deliberately took a pass. If there is to be a major retreat on long-guaranteed labor rights, it will not be this term, and labor leaders were relieved.

"We are pleased that today's decision ... doesn't change labor law and leaves the right to strike intact," said Mary Kay Henry, president of the 2 million member Service Employees International Union.

Meghanlata Gupta contributed to this story.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.