Supreme Court debates union tactics in spoiled concrete case

Jan 9, 2023, 11:43 PM | Updated: Jan 10, 2023, 2:02 pm

FILE - The Supreme Court is seen in Washington, on Dec. 5, 2022. The Supreme Court is debating the ...

FILE - The Supreme Court is seen in Washington, on Dec. 5, 2022. The Supreme Court is debating the lengths unions can go to when exerting pressure during a strike. (AP Photo/Andrew Harnik, File)

(AP Photo/Andrew Harnik, File)

WASHINGTON (AP) — The Supreme Court on Tuesday debated the limits of the pressure unions can exert during a strike in a case about cement truck drivers who walked off the job with the trucks full of wet concrete.

Chief Justice John Roberts at one point summed up the difference between causing a company to lose some money, which is legally permitted, and intentionally destroying property, which isn’t. It’s “the difference between milk spoiling and killing the cow,” he said.

The case comes to the justices following losses for organized labor at the high court in recent years. In 2018, the court’s conservative majority overturned a decades-old pro-union decision involving fees paid by government workers. More recently, the justices rejected a California regulation giving unions access to farm property in order to organize workers.

The current case could hurt unions by making it easier for companies to sue over harms caused by strikes, but several justices seemed inclined to rule only narrowly.

The case before the high court involves Glacier Northwest, which sells and delivers concrete to customers in Washington state. On the other side is a local Teamsters union, which represents the company’s cement truck drivers.

During contract negotiations in 2017 the union called for a strike, and drivers walked off the job while their trucks were full of concrete, which has to be used quickly and can damage the trucks if it’s not.

Glacier says the union timed the strike to create chaos and inflict damage. Glacier had to not only dump the concrete to prevent damage to the trucks but also eventually pay for the wasted concrete to be broken up and hauled away.

The company sued the union in state court for intentionally damaging its property, but the lawsuit was dismissed.

Noel Francisco, Glacier’s lawyer, told the justices that the union’s conduct isn’t protected under federal law for the same reason that “steelworkers can’t walk out in the middle of a molten iron pour,” “federal security guards can’t leave their posts in the middle of a terrorist threat” and “a ferry boat crew can’t drive their boat out into the middle of the river and abandon ship.”

Biden administration attorney Vivek Suri told the justices that the federal National Labor Relations Act protects workers’ right to strike but that they must take reasonable precautions to avoid damage to property and didn’t in this case.

Union lawyer Darin Dalmat agreed some actions aren’t allowed as part of a strike.

“We absolutely agree you cannot burn down the factory,” he said. But in this case he said the drivers were instructed to be conscientious when they walked off the job, to bring their full trucks back to Glacier’s facility and to leave the trucks’ mixing drums spinning so that the concrete would not immediately begin to harden.

“Every day it deals with leftover concrete,” Dalmat said of Glacier.

The question for the court is about how the case should proceed. Glacier says its lawsuit shouldn’t have been dismissed and should have been allowed to go forward in state court. But the union says Glacier’s lawsuit can only go forward in state court if the federal National Labor Relations Board finds the union’s actions weren’t protected by federal law.

The court’s three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — each suggested some sympathy for the argument that the NLRB should get the case first. The board has seen thousands of these cases, Kagan said and can “fit a case like this into a broader map of strike conduct and what’s protected and what’s not.”

But the justices also seemed skeptical that the union had acted appropriately. Jackson at one point compared the union’s conduct in this case to “the arsonist who says I’m going to walk away, but as I do, let me strike a match and burn down the factory.”

A decision in the case is expected by the end of June. The case is Glacier Northwest v. International Brotherhood of Teamsters Local Union No. 174, 21-1449.

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