Glacier Northwest Postscript Shows How Right Justice Jackson Was

[Omaha Steve]

January 16, 2024

Andrew Strom has been a union lawyer for more than 25 years. He is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY.

When the Supreme Court issued its decision in Glacier Northwest v. Intl. Bhd of Teamsters, Local No. 174 last June, Justice Ketanji Brown Jackson was the lone dissenter. The question in Glacier Northwest was whether the employer’s state court lawsuit was preempted by the National Labor Relations Act (NLRA). Justice Jackson pointed out that by the time the Court issued its decision, the National Labor Relations Board (NLRB) had already conducted a nine-day hearing addressing the same issues raised in the state court proceeding. She forcefully argued that the Court had “no business delving into this particular labor dispute at this time.” The Administrative Law Judge (ALJ) who presided over the nine-day hearing has now issued his decision, and the decision is further evidence that the Court should have listened to Justice Jackson.

In case you forgot, Glacier Northwest involved a strike by cement truck drivers. The employer alleged that nine of the striking drivers abandoned trucks full of wet concrete without telling anyone and that this raised an imminent risk of serious damage to the trucks. The employer sued the union, seeking damages for the expenses it incurred to avoid that damage. The union argued that the employer’s lawsuit was preempted by the NLRA because the strike was at least arguably protected by the Act, and as proof of that, the union pointed to a complaint issued by the NLRB’s General Counsel accusing the employer of illegally retaliating against the striking workers. The Court majority decided that it would not consider the NLRB complaint because it was issued after the state court proceedings concluded. The Court remanded the case for the state court to consider the effect of the NLRB proceedings, but not before issuing what amounts to an advisory opinion about whether the allegations in the complaint were sufficient to survive a motion to dismiss on preemption grounds.

Justice Jackson did not object to the majority’s decision to allow the state courts to have the first crack at deciding the significance of the NLRB complaint, but she faulted the majority for “intrud[ing] into this labor dispute while it is pending before the Board.” The ALJ’s decision shows why it made no sense for the Court to opine about mere allegations at a time when there had already been a nine-day hearing that created a voluminous factual record. Guess what? It turns out that allegations in the employer’s complaint differed substantially from the facts proven at trial. The judge found that the allegation that nine strikers abandoned full trucks without telling anyone was false. Instead, he found that each of the drivers informed their supervisor, the crew working with the supervisor, or the dispatch office that their trucks had full loads. Moreover, the judge found that all but one of the nine drivers left their trucks running with the drums rotating, and the remaining driver notified his supervisor of the full load. Further, some of the drivers added water to the concrete to slow its hardening. The judge found that the company could have slowed the hardening of the concrete in the trucks by adding sugar or chemical retardants, yet it did not take this step, undermining Glacier’s claim that the walkout created an emergency situation.

The ALJ made numerous additional findings that cast the dispute in a different light than the allegations before the Supreme Court. First, while the employer did not know the exact date and time of the strike in advance, it had plenty of notice that a strike was coming. Next, the drivers were aware that operating engineers, quality control technicians, laborers, and subcontracted mechanics were available to tend to the trucks. The drivers were also aware of the availability of the chemical retardants, and they knew that the concrete could be safely dumped in bunkers in the yard. And, the union instructed the drivers to notify dispatch or their supervisor of the condition of their trucks. Finally, it wasn’t as though the union directed the drivers to begin the strike only when they had full loads of concrete in their trucks – of the 53 striking drivers, only 19 had full or substantially full loads at the time the strike was called. And, half of the drivers with full loads dumped the loads themselves, further proof that the union did not set out to damage the employer’s trucks. Based on all of these findings, the ALJ found that the strike was not only arguably protected, but it was actually protected, and Glacier Northwest acted illegally when it disciplined some of the strikers.

FULL story: https://onlabor.org/glacier-northwest-postscript-shows-how-right-justice-jackson-was/

[mountain grammy]

1. K&R

[wolfie001]

2. All companies in the US are shit

The only difference is the level of shit. Some very high (like this case), some very low (in case I offend any sensitive souls who are married to their "beloved" companies).