This interview was originally published in video form by Breaking Points on Oct. 16, 2022. The transcript of the interview, which has been lightly edited for clarity, readability, and time sensitivity, is shared here with permission.
The strike is labor’s greatest weapon. When the bosses already have the power to hire and fire, when they have the power to coerce and control because they hold our checks (and, thus, our livelihoods) in their hands, when they have the political power that money buys, when they have a legal system that overwhelmingly protects their property and commercial interests over the rights and needs of working people, and when they also have at their disposal the vicious muscle of the police, the deck is stacked in their favor. And that, at least in the US, is how it was designed to be.
No matter how many politicians, small business tyrants, and Chamber of Commerce bootlickers whine about employers and investors not being able to do whatever they want and having to deal with some marginal regulations and pesky things like workers’ rights, the blunt fact is that the bosses have way more power to impose their will than workers do. Whether it’s dipshits who have never had a real job like Ben Shapiro, or cosplaying shills for big business like Mike Rowe, if anyone out there is trying to convince you that unions are these all powerful entities, and that bosses and businesses are more politically and legally hamstrung in this country than workers are, I promise you they are either lying to you or they are so ignorant about what they’re talking about that you probably shouldn’t be listening to them.
But here’s the thing: The deck has always been stacked in the boss’s favor. That’s been true since the existence of bosses. The people at the top of hierarchical power arrangements are there because they have more power than the people below them, and they wield that power to impose their will, to maintain that hierarchical system, and to fortify their own privileged place within it.
That is why the soul of the labor movement is collective rank-and-file organization and action. There are more of us than there are of them, as the adage goes, and workers’ strength, the power they have to counteract the power of the bosses, comes from their numbers and their ability to mobilize and act as a group. That is as true now as it ever was. As the great Big Bill Haywood, a founding member and leader of the Industrial Workers of the World, famously said, “If the workers are organized, all they have to do is put their hands in their pockets and they’ve got the capitalist class whipped.”
Why is that the case? What is it about workers collectively withholding their labor that tips the scales? Well, it’s kind of obvious, but the point of workers withholding their labor is to disrupt production, to disrupt business as usual, to shut shit down, as is workers’ right to do if they’re being treated poorly and unfairly—because sometimes that is the only way to get the bosses to listen. If workers can be prevented from causing such disruption, or if their actions can be safely circumvented with scabs and legal loopholes, then their demands can be safely ignored. Our right to strike is the foundation of the whole social contract holding this poor excuse of a society up. If we don’t have that right, or the cost of exercising that right becomes such a powerful deterrent that few actually exercise it, then we are just submitting to whatever unelected executives and managers want to dole out to us. We are resigning ourselves to the fate of bugs squashed under the boot of the necessary march towards whatever “great” future this capitalist system wants us to have.
And right now, many eyes within the labor movement are fixed on this rogue Supreme Court, which is currently hearing arguments in a case that could seriously restrict our right to strike. The outcome of this case will have huge implications for all of us who consider ourselves workers, or who consider ourselves part of what Richard Wolff described to me as the “order-taking class,” not the order-giving class.
Late last year, the Justices on the Supreme Court agreed to review a case that had previously been adjudicated by the Washington State Supreme Court, titled Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174. We’re going to do our best in today’s interview to break down this case and its implications without getting too mired in a bunch of eye-glossing legalese. But what you need to know upfront is that the Seattle-based ready-mix concrete supplier Glacier Northwest, which does business as CalPortland, sued Teamsters Local 174, claiming that a one-week walkout by workers in 2017 involved “intentional” property damage that the union should have to pay for. According to the union, before drivers walked off the job, they returned loaded trucks to the company’s yard and left them running so that the concrete in the mixing drums could be safely unloaded. Because workers took these precautions, the trucks were not damaged (which can happen, necessitating costly repairs, if the concrete is allowed to harden in the mixing drums); however, the company argues that the union should be held liable for the cost of the concrete that was unused, and became unusable, as a result of the work stoppage
Now, given this Court’s clearly demonstrated ideological and political mission to further empower employers and the ruling class writ large, to disempower working people and roll back our rights, there’s obviously a lot of fear right now that a ruling in this case could shatter decades of precedent and enable employers to make workers and unions pay incredibly steep prices for exercising their right to strike and for causing the very economic disruption that is, again, the whole point of a strike.
To talk about the Glacier case and what a SCOTUS ruling could mean for working people’s right to strike in the US, I spoke with Terri Gerstein, a senior fellow at the Economic Policy Institute and the director of the State and Local Enforcement Project at the Harvard Law School’s Labor and Worklife Program.
Terri Gerstein: Thank you so much for having me today. I’m really concerned about this case, and really happy to have the opportunity to drill down a little bit and explain what the case is about.
Maximillian Alvarez: Well, I’m freaked out about this case, too, and I desperately need your expertise here! Because I know that, like I said in the intro, our eyes can start glossing over when we get into the legalese here, but the implications of this case are humongous. I was wondering if we could start by just breaking down what this case is about and why you think the Supreme Court granted it a review?
Terri Gerstein: So in terms of what the case is about, you summarized some of the most important facts. There were workers who went on strike. Basically, the company Glacier had a contract that ended, and 11 days later workers went on strike. The company makes cement and has special prepared cement that is “quick dry,” so if it’s not poured within 20 or 30 minutes it will dry out. When the workers went on strike… The workday is such that some workers start at 2:00 AM, when the cement has already been mixed, and they start at staggered times going to 7:00 AM—and they went on strike at 7:00 AM. What happened was the workers then, the ones who were still at the company premises, went on strike, but they left the cement trucks running so the cement would not dry out. The workers who were out delivering cement brought the trucks back to the company premises and, again, also left the trucks running so the cement wouldn’t dry out. If the cement had dried out and the trucks had been turned off, for example, that could have ruined the trucks and rendered them unusable.
The company was able to clean out the trucks. There was no damage to the premises, no damage to the vehicles, but the cement for that day—they were able to remove it from the trucks, but it wasn’t usable in the end because the company didn’t have a backup plan. This happened during active negotiations—it happened less than two weeks after the prior contract, which included a no-strike clause, had expired. And so, it perhaps would’ve been prudent for Glacier to have in mind that this was among the possibilities and have some contingency plans. But the cement was damaged.
What happened in the court case: The employer filed what’s called a tort lawsuit, and a tort lawsuit is basically a lawsuit for economic damages (i.e., someone did you harm and they owe you money for it). And the employer filed a tort lawsuit in state court saying, “We lost all this cement and we should be able to sue the union for damages, because we lost all this money because of the cement.”
Now, usually, that kind of lawsuit wouldn’t be allowed, and this is where it does get a little wonky… It’s not allowed because of a concept called “preemption,” and the whole idea there is that the National Labor Relations Act, or federal labor law, is supposed to be uniform nationally, and states aren’t supposed to be allowed to weigh in either in favor or against the union or the employer. The idea is that they came up with this whole scheme and it’s supposed to all be managed at the federal level.
There are a few exceptions to this. The classic example is: If someone punches someone on a picket line, that’s assault, and the state can get involved. So there are some exceptions to preemption. And what’s happening in this case is Glacier is arguing that because the cement was damaged, that’s akin to something like vandalism, and so it falls outside of preemption and they should be able to not just work within the confines of the NLRB and the National Labor Relations Act, or federal labor law, but they should be able to go into state court and file a claim for economic damages.
This is really troubling because causing some economic harm to employers is implicitly part of what a strike is. That’s just part of what happens. The cases talk about the economic weapons that are contemplated by the National Labor Relations Act and our federal labor policy, and causing some economic harm to the employer is what gives workers their collective leverage in a strike. Again, workers are not allowed to take a bat to the front door of the company, they’re not allowed to do things that go beyond that normal economic harm. And so, what’s really troubling about this case is that the company is arguing that the loss of one day’s supply is akin to vandalism or punching someone on a picket line, akin to really intentional property damage. It’s really troubling. And the company argues, as well, that the timing of the strike is part of what makes it fall outside of preemption, that the workers timed the strike in a way that made it particularly harmful because the cement was already mixed, and therefore that caused the damage.
But, again, workers can choose strategic timing for their strikes, and to argue that strategic timing or losing a day’s supply of product (even when there was no harm to the vehicles, no harm to the premises or anything like that), and to permit the employer to then sue a union for damages in a way that could be potentially extremely harmful financially to them, is just a very dangerous precedent to set.
Maximillian Alvarez: Right. Like you said, it’s really dangerous because that’s the whole damn point of these actions. I mean, if Amazon workers walk out on Prime Day, there’s a very obvious reason why they’re doing that. And if employers can somehow use and weaponize the courts to say that this is vandalism that unions have to pay for, that’s obviously going to be a huge disincentive for folks thinking of going on strike.
You already started touching on this, but let’s talk a little more about why this matters, and, depending on the decision, what the implications could be for workers’ collective right to strike. Are there any positive outcomes that could come from this?
Terri Gerstein: Well, I think the negatives far outweigh the positives. (There are some positives, though, which I’ll talk about in a minute.) But when you think about the implications as well, when you think about the fact that the concrete was quick dry and, in a sense, a perishable product… our entire food chain consists of perishable products, right? What does this mean about the right to strike for everyone from food processing workers, restaurant workers, people who make yogurt, people who work in ice cream stores?
One of the major cases, in fact, that the union cited in its brief—and I think the Washington State Supreme Court, which came out against Glacier, cited it as well—dealt with cheese workers who had walked out at a cheese company in Colorado. The facts of that case are, basically, the workers wanted to have Christmas afternoon off, as they had been promised, and so they walked out on cheese making, and then the cheese was of a lower quality and the employer made less money selling the cheese as a result. Again, in that case, which I believe was an NLRB case and didn’t end up in the courts, the decision was that the fact that the cheese was of a little lower quality doesn’t render the strike unprotected by the National Labor Relations Act. So when you start to think through the potential ripple effects of this SCOTUS ruling … you start to spin out what could be categorized as perishable products—and there are even different kinds of products and services that aren’t perishable in the way that food is perishable or quick-dry concrete is, but they’re seasonal. Clothing and fashion (or retailers for the entire month of December, before Christmas and the winter holidays) can be seasonal.
But in terms of potential silver linings, this whole issue of National Labor Relations Act preemption (i.e., that states and localities are not allowed to get involved in anything that is arguably covered by federal law)—this is something that has been used often by employers to prevent workers from having certain kinds of rights.
For example, right now there’s a case going on: New York City passed a law creating just-cause termination for fast food workers so they can’t be arbitrarily fired and have to have some kind of job-related reason for being terminated. And that law is being challenged, in part, on National Labor Relations Act preemption grounds, saying that this is arguably covered by the NLRA and, thus, a city shouldn’t be able to make this kind of law.
Reading the Glacier case is interesting for me, as my own background is in state labor law enforcement. I work with a lot of states and localities, and we’re often having conversations about the different ways that states and localities can actually protect workers without being constrained by preemption. And so, if the employer is allowed to sue the workers or the union for economic damages in state court for striking, logically, that weakening of preemption should create some space for workers, too, to have other, now-non-existent state and local opportunities for remedies or action that could benefit them. For example, could a worker sue an employer for damages if the worker is terminated in retaliation and, as a result of not being paid wages, ends up being evicted? There’s a tort called “intentional infliction of emotional distress.” Are there damages that workers could sue for connected to that? Would a ruling in favor of the employer in the Glacier case open the door for more action by progressive states and cities?
So, logically, if the Supreme Court were actually going to be consistent, if they were going to loosen preemption and say, “Yeah, there’s a little bit of a wider area that states can get involved in,” that should redound not only to employers’ benefit in some instances, but also to workers’. There’s a “What’s good for the goose is good for the gander” issue here. And I think that prospect, frankly, should give the Justices some real pause, even the conservative Justices, because I don’t think that they’re concerned about preserving the right to strike or workers’ right to take collective action, but they may be concerned about overreaching by states or workers or unions pursuing employers in various ways.
Given the composition of the court, though, I think this is all just really concerning. They seem to be very good at finding ways to thread the needle. In this case, you really would have to thread the needle to say, “Yes, preemption is relaxed, but only for the employer.” But their ability to thread such needles, to come to outcomes that are pro-corporate and anti-worker, has been troubling and disappointing, obviously, for several years now. To me, this case illustrates, among many other things, the urgent need to have court reform, because with the Supreme Court we have, it creates a lot of really bad outcomes on a lot of issues that many of us care deeply about.
Maximillian Alvarez: You say “If the court wants to be consistent”… that’s a big “if” with this court… And I think that’s why we’re all so nervous about stuff like this, because we’ve seen, as you said, that this Supreme Court really is wearing its politics on its sleeve. It’s making it very clear that it is trying to take the outcomes that the majority of the court already want and shoehorn some sort of legal justification to come out the other side with those outcomes. And so, there’s the obvious point, as you said, about the ideological makeup of the majority of the existing court, but there’s also a thing that I try to emphasize for folks: The larger system that we’re seeing at work here is also very much stacked in favor of employers, of investors, of major corporations, of the ruling class writ large.
When the legal system becomes so costly and prohibitive and takes so long to move cases through the courts, let alone to get up to the level of the Supreme Court, obviously there are going to be a lot of cases that only make it there because they can ride on waves of cash from employer advocacy groups, conservative donor groups, shadowy PACs, and stuff like that. In a lot of ways, the courts are policy making through the side door—and that door is only really accessible to people with lots of money. Because, just like the infamous Janus decision in 2018, the Glacier case that the Supreme Court has agreed to hear—it’s not just some mom and pop who filed a lawsuit and, somehow, that case made it all the way to the Supreme Court. No, there are a lot of outside interested parties that are trying to push this case all the way up to the Supreme Court and get the outcome that they want.
I wanted to ask if you could just talk a little bit more about the class interests that this Supreme Court is serving? And another question I had is: Is this something that the Biden administration or Congress could cut off at the pass with any sort of executive order or legislation?
Terri Gerstein: That’s a great question. And your observations about the court are exactly spot on, because in addition to the Janus decision, we’ve seen other decisions in the last few years that have really shown hostility to worker collective action. There was the Epic Systems case: that case was written about and understood to be about forced arbitration and giving one more blessing to employers forcing arbitration on workers. But the Epic Systems case was really about whether it violates the National Labor Relations Act to require workers, as a condition of employment, to give up their right to bring a class action, which is inherently a form of collective action. To me, it’s a real example of what you said—of outcome-based jurisprudence that the Justices came out against and found that it wasn’t a violation of the NLRA. They could have harmonized the Federal Arbitration Act and the National Labor Relations Act, and they chose not to.
And then, more recently, in the last session, there was the Cedar Point Nursery case in which there was California state law—I guess there still is… I don’t know the exact status of the law—that allowed unions to go onto agricultural job sites for a super modest period of time during a very limited number of days per year. The reason for the law is, obviously, because farm workers are isolated and vulnerable and they’re working in rural areas that are hard to reach. But the Supreme Court basically found that this California law was an unconstitutional taking of the grower’s property without just compensation. The reason I say I’m not sure about the current status is that, generally, if something’s “a taking,” it means that you have to give just compensation. And so, I don’t know how you calculate just compensation for letting organizers on the property for 30 minutes a few times during the calendar year. But both of these cases really show the Court’s hostility to collective bargaining.
But in terms of the question of what Congress can do, again, this case also illustrates the importance of the midterms and how much is at stake in elections. Because, borrowing from another area, the Supreme Court had a really bad decision recently, earlier in 2022, about the Clean Air Act—a decision that constrained the Environmental Protection Agency’s ability to act in certain circumstances. And Congress, when they passed the Inflation Reduction Act, basically rectified that and changed the definitions so that now the EPA has the authority to do what the prior statute didn’t permit. And so, there are ways that Congress—if we have a Congress that will actually do work for working people and really fight for these issues—would have the ability, potentially, to legislate in a way that could obviate the bad results of this decision.
Maximillian Alvarez: I want to pick up on that quickly before I let you go, because this is such a crucial point that I want to stress for anyone reading this… I think the situation that all of us are in right now, in relation to the current Supreme Court, really crystallizes the dynamics of power in this country. For anyone reading this, regardless of what your politics are… I know that you may be either cheering on or lamenting the decisions that are being made by this court as if they’re being somehow made for us. Like, “Oh, yay, the Supreme Court overturned Roe. That’s a huge win for the people who wanted that to happen.” Or you may have been cheering on earlier in 2022 when the Supreme Court basically overturned OSHA’s authority to enforce mandates for vaccines or weekly testing for large employers who have 100 employees or more. You may consider that a win for your side. What I want to stress is that: The Supreme Court does not give a shit about you.
There is a very clear class dimension at play here. You could, in fact, interpret a lot of these Supreme Court decisions as buttressing the power of the ruling class and disempowering working people, because that is the net effect. Losing abortion rights—who’s that going to hurt? Working people, working families. It’s going to hurt people’s ability to make a living. The number one justification for people getting abortions is financial need.
And the EPA ruling that you mentioned, Terri… look at Louisiana. Who are the people who are going to be living and suffering in sacrifice zones, where corporations can just pollute the air, water, and so on? Working people. Even the OSHA case that I mentioned earlier. You may be totally ideologically opposed to mandates for vaccines or weekly testing for unvaccinated employees. Fine. I’m honestly too exhausted to get into that debate right now. But you should know that the justification that was given in that court ruling, the justification for the Court saying that OSHA did not have the authority to implement this rule—that will have large implications for workers. Because what the Justices said is that COVID is a general condition that is not limited to the workplace, thus employers have no special requirements to increase safety measures for their workers.
Now think about climate change… We did a segment a couple months ago on the heating in UPS package cars. As climate change gets worse, employers can point to that same SCOTUS ruling and say, “Well, the climate problem is a general problem. It’s not a workplace problem, so we don’t have to do shit to protect our workers who are boiling out in the agricultural fields or in the warehouses or package cars, so on and so forth.”
So, just think of the implications of these rulings and what they mean for working people in general, instead of getting sucked into this position that we’re always in where we’re cheering on one side or the other. We’re effectively put in the position of the citizens of Tokyo cheering on Godzilla or Mothra and just hoping that they fall on the right buildings. We have no influence here. We are very much at the mercy of a Court that is carrying out the interests of the ruling class with these rulings.
Terri Gerstein: One framework that I would add to what you were saying is that a lot of what you’re describing, and a lot of these problems, is the logical extension of the ’80s, the Reagan era of government, and the whole attack launched on the public sector… I mean, everything from parks and libraries to hospitals and highways and public transit—we don’t invest nearly enough in these things in this country. And the entire dismantling of the state, of regulation, of antitrust enforcement… again, there are obviously corporate interests here that don’t want to be regulated.
I think that’s also part of the context of all of this: deregulation, the free market run amok. And I think, also, in moments like these, when we have a pandemic like COVID, when we have climate change, the hurricanes in Florida, etc…. These are moments when I think people realize there are situations that we just cannot address individually, and we need to have some sense of collective action, separate from collective action in the workplace—just collective action as the public, as fellow human beings—and we do need the state to play a really important role in that. There is a danger of thinking about the important role of the state only in those crisis situations, because the state and the public sector play critical roles in so many different areas. But, again, I think a lot of these Supreme Court decisions have been very anti-regulation, very anti-oversight of corporations, and that’s something that, as you said, redounds to all of our detriment.
We haven’t figured out a way yet for people to buy their own air. I mean, obviously, wealthy people have options that everyone else does not, but in the end, there really are some collective interests that we all share. And dismantling the regulatory state in this way, not allowing anything from gun laws to environmental laws to workplace laws—that’s something that really harms everyone.