Legal Docket: What labor laws allow

NICK EICHER, HOST: It’s Monday morning, February 13th and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Well, seven years ago today on this date. It was a Saturday in February 2016, and Nick you called me up with news that Justice Antonin Scalia had died. I gotta say, it knocked the breath out of me.

EICHER: I’m surprised I even had the breath to say it! It was one of those events where you remember where you were and what you were doing when you heard the terrible news.

REICHARD: Right, but I want to mark that anniversary, because it’s the first one since the reversal of Roe versus Wade. So sorry he didn’t live to see the day.

I was in law school when President Ronald Reagan appointed Scalia to the high court. As a twenty-something, reading his opinions—and especially his dissents!—made quite an impression. The clarity of his thought, his obvious love of the Constitution, the way he practiced his faith, I admired him so much.

So, in Justice Scalia’s honor and to illustrate how his thinking eventually took hold in the court last year when it overturned Roe, I want to share with you some audio. Here’s Justice Scalia back in 2012. It’s from an interview he did on CNN with Piers Morgan.

MORGAN: Let's turn to Roe v. Wade, because you, Justice Scalia, you had very strong opinions about it at the time. I know you do now, why were you so violently opposed to it?

SCALIA: I wouldn't say violently. I'm a peaceful man! Adamantly opposed.

MORGAN: Adamantly.

SCALIA: Basically, because the theory that was expounded to impose that decision was a theory that does not make any sense….

MORGAN: Should abortion be illegal in your eyes?

SCALIA: Should it be illegal?

MORGAN: Yeah.

SCALIA: I don't, I don't have public views on what should be illegal and what shouldn't. I have public views on what the Constitution prohibits and what it doesn't prohibit.

MORGAN: But the Constitution when they framed it, they didn’t even allow women the right to vote. They gave women no rights.

SCALIA: Oh, come on. NO rights?

MORGAN: Did they?

SCALIA: Of course, they were entitled to due process of law….My view is regardless of whether you think prohibiting abortion is good, or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it. It leaves it up to democratic choice. Some states prohibited it, some states didn't. What Roe versus Wade said was that no state can prohibit it. That is simply not in the Constitution.

Morgan then asked how Justice Scalia can keep his personal sense of right and wrong out of his decisions on the court:

MORGAN: Because clearly as a conservative Catholic, you’re going to be fundamentally against abortion.

SCALIA: Just as the pro choice people say the Constitution prohibits the banning of abortion. So also the pro life people say the opposite. They say that the Constitution requires the banning of abortion, because you're depriving someone of life without due process of law. I reject that argument just as I reject the other one. The Constitution in fact says nothing at all about the subject. It is left to democratic choice. Now, regardless of what my views as a Catholic are, the Constitution says nothing about it.

EICHER: You said it earlier: If only he could’ve lived long enough to see the court finally right that grave wrong of Roe vs. Wade with the Dobbs decision!

REICHARD: Well, I think it’s interesting that one of the deciding votes in Dobbs was a Scalia clerk back in the day: Justice Amy Coney Barrett.

EICHER: Let’s move on to our one oral argument for today. The Supreme Court heard argument in this one last month.

It’s a dispute between a labor union and a concrete mixing company.

The company is Glacier Northwest, based in Seattle.

It makes custom batches of concrete for specific uses. Once mixed, it goes into the rotating drum of a truck and then delivered to the customer that same day. Timeliness matters with concrete. With time it can become useless and can end up damaging the trucks.

REICHARD: Glacier’s 90 or so truck drivers are represented by the International Brotherhood of Teamsters.

Back in 2017, negotiations over a new collective bargaining agreement seemed at an impasse. So union officials came up with a plan: load up the trucks with concrete, then have the truckers walk off the job.

That led to destruction of the concrete, costing the company in sales and the cost to have the ruined concrete removed.

So the company sued the union in state court for intentional destruction of property.

And the case wound its way to the U.S. Supreme Court.

Noel Francisco is lawyer for the concrete company:

FRANCISCO: First, this is not a case about the mere stoppage of work. Here, the union had the workers show up, accept possession of the concrete, begin deliveries of the concrete, abandon those deliveries when it was too late to save the concrete, and then countermand supervisor instructions to complete the deliveries that had already been started, which at that point in time was the only way to save the concrete. It's really no different than the riverboat crew that drives out into the middle of the river and then abandons ship. That is not merely a stoppage of work.

EICHER: The point of a mere stoppage of work, the point of a strike is to gain leverage against the employer and the only real leverage is some economic harm.

The company says what the union did went far beyond that. In the company’s view, this was coordinated sabotage.

But the union grounds its argument in provisions of the National Labor Relations Act. It argues this federal law preempts the company’s claims.

Labor lawyer Darin Dalmat:

DALMAT: Glacier sued Local 174 over a concerted work stoppage, conduct at the heart of the Act's protections. Under settled law, strikers lose those protections if they fail to take reasonable precautions to avoid aggravated, imminent, foreseeable harm to employer property.

REICHARD: Dalmat points out his client did take “reasonable precautions:”

DALMAT: On the record shows the union instructed the drivers to return their trucks to Glacier's facility, which all the drivers did, thereby putting Glacier in a position to use its ordinary tools for handling leftover concrete, such as reclaimers, ecology block forms, and retardants. The union also told drivers to return their trucks with the drums running….the concrete does not even begin to harden until the drums stop turning. As a result, no harm came to Glacier's trucks or facility.

No harm to the trucks, but non-union staff had to scramble to save the trucks, build bunkers to hold the concrete, dump it, then break it up and pay to have it hauled off. And of course the product, the concrete, was ruined.

These are specific facts related to a specific strike. So the legal question for the justices is just when should a case like this be preempted?

Justice Ketanji Brown Jackson sought clarification:

JACKSON: Yes, economic harm is being inflicted when you stop work.

DALMAT: Intentionally.

JACKSON: You intentionally stop the work, but the question is, can you do something that actually intends to affect the property directly to make the property unsalvageable. We can't get new people in here as a result of the strike and pick up where we left off because you literally burned down the factory. We agree that you can't burn down the factory, right?

DALMAT: We absolutely agree you cannot burn down the factory. (Laughter.)

JACKSON: Okay. All right.

DALMAT: You cannot smash things.

EICHER: So no burning, no smashing and over all of this is a Supreme Court decision from 1959. It’s called San Diego Buildings Trade Council v Garmon. That said federal law preempts state court litigation that’s connected to conduct protected under the labor-relations act. It says when actions by either employees or employers are “arguably” protected by the act, that dispute must be heard first by the National Labor Relations Board—the N-L-R-B.

REICHARD: You can probably hear the problem.

“Arguably” is a word whose meaning can be, well, argued.

For decades now, courts have decided whether certain conduct is or isn’t “arguably protected” by federal labor law. If it is protected by federal labor law, those cases go to the NLRB. Not to the courts.

But who makes that threshold decision of whether a certain set of facts, like leaving trucks filled with wet concrete, is protected union activity?

Francisco for the company made it clear:

FRANCISCO: We’d prefer not to be before an administrative agency where the agency is the judge, jury, and executioner. We prefer to be in a court system where we have a neutral judge and the potential for a jury.

EICHER: The federal government also filed a brief in this case, supporting neither party. It recommends remanding the case because of a procedural error made by the Washington State Supreme Court.

Assistant to the Solicitor General Vivek Suri must have been cheered by this exchange with Justice Sonia Sotomayor:

SOTOMAYOR: Tell me how to write this decision.

SURI: I'd suggest copying our brief, Your Honor. (Laughter.)

SOTOMAYOR: I know, but your brief was whatever number of pages, 30-odd pages. Give it to me in two paragraphs.

KAGAN: A summary of the argument.

SOTOMAYOR: Summary of the argument.

SURI: The National Labor Relations Act protects the right to strike, but workers have a corresponding responsibility to take reasonable precautions to prevent foreseeable, imminent harm to the employer’s property. In this case, accepting the allegations in the employer's complaint as true, such precautions were not taken. Therefore, the conduct was not even arguably protected, and the Washington Supreme Court's decision is reversed.

My best guess is that the justices will remand. Labor lawyers are watching this carefully. The eventual decision could leave unions with a lot more legal liability for what happens in the run-up to and during a strike.

And that’s this week’s Legal Docket.

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