0:00:00.0 Speaker 1: We'll hear argument this morning in case 21-1449, Glacier Northwest versus International Brotherhood of Teamsters.

0:00:12.1 Leon: Hey everyone, this is Leon from Fiasco and Prologue projects. On this episode of 5-4 Peter, Rhiannon and Michael are talking about Glacier Northwest be the international Brotherhood of Teamsters. In this case, a concrete company argued that they should be compensated for losses incurred when their teamster drivers went on strike. A good chunk of the oral arguments in the case centered on whether or not concrete is like milk. Is what the Teamsters did, like walking away from a bunch of milk and letting it spoil, or was it more like dumping the milk down a drain?

0:00:43.9 Speaker 3: Your bottom line is the concrete is a perishable, it equals the milk for the purpose of your argument.

0:00:49.8 Leon: As it turned out, the case was not really about milk or concrete for that matter. It was about whether a business should be allowed to do an end run around our nation's labor laws. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:07.4 Peter: Welcome to 5-4 where we dissect and analyze the Supreme Court cases that have left us draped in darkness, like daylight savings time during the winter. I'm Peter. I can see your face, Rachel. Ooh, it's standard time actually. [laughter] The daylight savings is during the summer.

0:01:21.7 Rhiannon: Oh, this is exactly like... I'm sorry you haven't introduced me yet, but there is a person on our Patreon who says, because I put EST Eastern Standard Time, whatever the fuck. And they're always like, it's Eastern daylight, DT or whatever. No. Shut the fuck up. Yeah. Peter, go ahead.

0:01:36.9 Peter: Yeah. Leave us alone. [laughter] I'm here with Rhiannon.

0:01:45.2 Rhiannon: Hello. Hello. [laughter]

0:01:46.3 Peter: And Michael.

0:01:51.9 Michael: Hi everybody. We really appreciate our subscribers and listeners.

[laughter]

0:01:57.6 Peter: Absolutely. Absolutely. I just feel like every year we do the little fallback and I'm like, Well, this is awful. And then I talk to everyone and they're like, Yep, this sucks.

0:01:58.2 Michael: I hate it.

0:02:02.2 Peter: People are like, what if someone changed this? And then it just fades away. And I don't really understand why. Some people used to say farmers, and now there's other reasons I don't remember that are more real. I don't care. I want it to end.

0:02:12.8 Michael: Can you believe that the Senate actually ended this and then it died in the house because Democrats in the house couldn't agree on whether it should be permanent daylight savings or permanent standard savings?

0:02:24.9 Peter: How is that even a question?

0:02:25.3 Rhiannon: It's just a perfect encapsulation of the Democratic party. Like, okay. Yeah. Yeah. Thanks a lot. Thanks a lot. Easiest fucking issue on your desk right now, right? Yeah. Can't come to an agreement.

0:02:34.9 Peter: It's very upsetting and it shouldn't be controversial. It's just miserable. And I have seasonal depression starting two weeks ago. [laughter] Alright.

0:02:46.6 Michael: It's gotten worse for me because it's also now like very much timed with my end of the year 5-4 slump. Where I'm like, it's been a long year. We're coming up on our December break. I'm always start to drag a little in October, and then we get like the change and it's like, Fuck, I'm done. [laughter]

0:03:06.0 Peter: Well, what's interesting about it, is like everyone's already getting a little bit more sad. It's like getting a little colder. Darker a little earlier. And then they just turn the screws on you. Boom. An hour gone. You're fucked. It sucks.

0:03:22.7 Rhiannon: Pour salt in the wound. It's awful.

0:03:25.0 Peter: It sucks. I know that it's hack shit to complain about this [laughter] but I just don't... I have a platform and I'm gonna use it.

0:03:31.5 Michael: That's right.

0:03:36.6 Rhiannon: Yeah.

0:03:40.5 Peter: All right. Today's case, Glacier Northwest, the Teamsters. This is a case about strikes. Glacier Northwest is a concrete company. They make it, they put it into those big spinny trucks, and they deliver it to their customers. Their workers decided to strike, and when they did, they walked out of the trucks, they left concrete in them, the concrete hardened eventually and became unusable. So Glacier Northwest sued the union saying that they should have to pay for the damages from the lost concrete. And the union for their part said, no way we have a right to strike. We shouldn't have to pay for what happens naturally as a result of that strike. But the Supreme Court in an eight to one decision from earlier this year, sided with the company saying the Teamsters could be held liable for the lost concrete. Rhi, I'll hand it over to you. [laughter]

0:04:31.4 Rhiannon: Thanks Peter. So, yes, Glacier Northwest, this is a concrete delivery company. They're based in Washington state. One note up, top concrete, the word. I like to say cement, I think.

0:04:48.8 Michael: I think it's got a nicer sort of aesthetic sound.

0:04:54.6 Rhiannon: And I have always thought that they're interchangeable, but you do a little Google here and...

0:05:01.4 Michael: Ridiculous.

0:05:04.5 Rhiannon: Yeah, yeah. No, your Google calls you a fucking idiot for saying that these two things are the same. Okay. So we have, cement is a binding agent. Concrete is a mixture of cement, sand, gravel, and water. Okay, cool.

0:05:15.1 Peter: Concrete's like the whole shebang, right?

0:05:15.2 Rhiannon: Yeah.

0:05:15.2 Michael: Right. Cement is what makes the concrete, concrete.

0:05:20.2 Rhiannon: Sure.

0:05:20.3 Michael: But it's not concrete without some other things.

0:05:22.9 Rhiannon: Second thing that comes up on Google for me, concrete is much more durable than cement itself. Feels like they're like fighting. Like, whoa, okay.

[laughter]

0:05:32.0 Peter: I'm just gonna go on the record. I don't accept that there is a difference.

0:05:35.3 Rhiannon: Right. That's what I'm saying. That's what I'm saying.

0:05:38.5 Peter: This is very nerdy shit and I don't feel like I should have to learn it.

0:05:42.9 Rhiannon: But there's for sure a cement or a concrete lobby and they're gonna be mad at us for whatever we say in this episode. Alright. Concrete delivery company, Glacier Northwest truck drivers who worked for Glacier Northwest were members of the International Brotherhood of Teamsters Local Union number 174. And the union authorized a strike back in 2017. Now, Glacier Northwest accused the union of timing, the start of that strike to begin after some of the Glacier Northwest trucks were already filled with wet concrete. And of course, that would risk damage to the trucks themselves as the concrete hardened. It would also risk losses in terms of loss of equipment and material, like the loss of the wasted concrete itself that didn't get delivered. And then the company would have to dispose of it, blah, blah, blah, blah, blah. Like huge cry babies.

0:06:29.7 Rhiannon: So what happened, just to break it down kind of specifically and in terms of imagining really the scope of this alleged damage that the company suffered. What happened was that negotiations for a new collective bargaining agreement were not going well. The contract had expired. The union and Glacier Northwest were negotiating. Things were not progressing according to the union. And so on the morning of August 11th, 2017, the union signaled for workers at Glacier Northwest to do a work stoppage, walk off. The company that morning was already mixing concrete for the day. Batches of concrete were already being loaded into some of the trucks. Other trucks were already out delivering concrete, work was already happening, obviously. That is why it's called a work stoppage. So the company instructed all drivers to finish their deliveries. Like once the union signaled for the work stoppage, Glacier Northwest contacted all the drivers and were like, You better finish your deliveries that are already in progress.

0:07:32.4 Rhiannon: But the union had said, stop working, we're going on strike. So, 16 drivers who had been out for deliveries, turned around and came back to Glacier Northwest with fully loaded trucks. There is wet concrete spinning in the drums of the trucks. Seven of those drivers parked and they told a Glacier representative what was going on. And they took action actually to protect the trucks from damage. Nine drivers abandoned their trucks, they parked the trucks at Glacier Northwest on site, walked away. Strike time. That's what it sounds like to me.

0:08:05.1 Peter: You gotta stop working for the strike to be happening.

0:08:08.5 Rhiannon: The union says stop work and then you stop working.

0:08:12.2 Michael: That's the way strikes work. Yes.

0:08:17.8 Rhiannon: Right. Exactly. So in terms of like the actual damage sustained by this company, Glacier Northwest was able to use non-unionized employees who were not walking off the job. They use those employees to save the trucks. So none of the trucks were actually damaged in any long-term way at all. But the concrete that the company had produced that day and that had been put in the trucks when the union workers walked off that concrete went to waste. A day's worth of concrete from nine concrete trucks.

0:08:46.2 Peter: Moment of silence, folks.

0:08:48.2 Michael: Yeah.

0:08:50.5 Rhiannon: I don't hear you sufficiently sobbing into your mics right now. Like heartless fucking monsters. This is tragic.

0:08:56.6 Peter: Sometimes words, they're not sufficient.

[laughter]

0:09:02.1 Rhiannon: Just as a side note, IncFact, INC, like incorporated corporations. IncFact says this company, Glacier Northwest, has revenues up to $500 million a year.

0:09:11.7 Michael: When I had like a little basketball court. You've seen my basketball court, Rhiannon.

0:09:19.3 Rhiannon: Yes. In your driveway. Yeah.

0:09:19.4 Michael: My little pad. It's not even a quarter of a court. That was like a little more than one full truck.

[laughter]

0:09:27.8 Rhiannon: Yeah. Yeah.

0:09:31.1 Michael: We're talking about like, I don't know, probably $10,000 worth of product here.

0:09:37.8 Rhiannon: Yeah. Yeah. I think it's interesting. I was thinking about this while reading. I think it's interesting that nowhere in the opinion does it say how much they're suing for. You know what I mean?

0:09:46.8 Michael: Yeah. Yeah.

0:09:47.8 Rhiannon: Because you can't say like they suffered losses of $50 million. It's just not that much.

0:09:52.7 Peter: Right. It's in state court because it doesn't meet the federal minimum monetary standards threshold.

0:09:57.0 Rhiannon: Exactly. Exactly.

0:10:00.6 Peter: The tort suit. Yeah.

0:10:00.7 Rhiannon: And there's a lot of drama kind of throughout the opinion. The majority is written by Amy Coney Barrett, and there's just some interesting language, like in this business, time is of the essence. And she says like, Glacier faced an emergency, a mad scramble ensued, [laughter] Just stuff like that. "The company could not leave the mixed concrete in the trucks because the concrete's inevitable hardening would cause significant damage to the vehicles. At the same time, the company could not dump the concrete out of the trucks at random because concrete contains environmentally sensitive chemicals. To top it all off, Glacier had limited time to solve this conundrum." Wait, wait, wait. Sorry. Sorry. I meant to tell you to pull up your fainting couch before I read that. Everybody okay? [laughter] Everybody all right?

0:10:43.8 Michael: I was already sitting down. [laughter]

0:10:46.7 Peter: You guys remember the opening scene of Heat where they do the heist of the truck, the armored truck? And once the call to the cops goes out, they start a timer. Like two minutes or whatever, until the cops all arrive and it's like...

[vocalization]

0:11:04.6 Rhiannon: Yeah.

0:11:09.5 Peter: That's what's happening in Amy Coney Barrett's mind with cement hardening in these trucks.

0:11:12.1 Rhiannon: Exactly. In a couple of trucks.

0:11:19.6 Michael: Seven to $10,000 worth of concrete, Peter, not cement. God!

[laughter]

0:11:24.1 Rhiannon: So Glacier Northwest sues the union in Washington state court alleging that the union caused this damage to the company intentionally. They sue the union for two things. These are the dumbest words you could possibly use for legal, anything. They sue for conversion and trespass to chattels.

0:11:42.1 Peter: Little one L verbiage here. Yeah.

0:11:44.2 Rhiannon: Yeah, yeah, yeah.

0:11:47.1 Michael: Throwback.

0:11:51.6 Rhiannon: Blast from the past. Yeah. Conversion just means stealing something from me. You have to pay me for it. And trespass to chattels means like interfering with my property.

0:12:01.6 Peter: Yeah. Touching your stuff.

0:12:06.2 Rhiannon: Yeah. [laughter] Exactly.

0:12:08.5 Michael: That's right.

0:12:09.8 Rhiannon: You touched my stuff. So Glacier Northwest sues in Washington state court. The union says, Hey, this lawsuit is preempted by the NLRA, the National Labor Relations Act. And we're gonna talk about preemption in just a second. And the court in Washington agreed with the union. They dismissed the lawsuit, said Glacier Northwest, you cannot sue them this way. But of course, Glacier Northwest appeals, and this case makes it all the way up to the Supreme Court on whether or not Glacier Northwest can sue them in state court.

0:12:30.0 Peter: Yeah. A lot of this case is about what's called preemption. And what this means in this case is just that federal laws are supreme over state laws, generally speaking. So when they conflict, the state law is preempted and does not apply. So you have the National Labor Relations Act, a federal law that says unions have a right to strike, and then the union is being sued under state laws, about like theft, destruction of property, blah, blah, blah. So the fancy legal question is whether those state laws are preempted by the National Labor Relations Act, but maybe a simpler way to think about it is that the question is whether what the union did here is implicitly protected by their right to strike. Whether this is just like part of the normal cost of a strike or if it's outside the bounds of proper union behavior.

0:13:20.1 Peter: And that's sort of what the court is figuring out. And the majority, again, written by Amy Coney Barrett, there's a lot of technical stuff here about preemption, about the jurisdiction of the National Labor Relations Board, the body that oversees labor disputes. We can skip that for now because it is boring. [laughter] The main gist here is that the majority says that the union should have to take "reasonable precautions" to protect the company's property from being damaged. And Amy says they did not, they did not take reasonable precautions. So there's a lingering question of what that means. One of the biggest problems for the majority is that there are some very similar cases that have come before the NLRB in the past. There was a case where workers at a poultry plant timed their strike for when everyone would be at work and there would be a large number of chickens on the line when they walked out. Very similar case. You have a perishable product and the strike is timed to result in the loss of that product. The NLRB said that that was fine. That's part of what strikes are according to the NLRB. Product loss is part of what happens when people walk off the job.

0:14:37.7 Rhiannon: Right.

0:14:38.1 Michael: You don't have to time your strike to be maximum convenient for your employer that you're striking against.

0:14:47.1 Rhiannon: Right. Exactly.

0:14:51.3 Peter: Amy Coney Barrett says that that case and similar cases are different from this one. I'm gonna try to give you her explanation, but it just doesn't make any real sense to me. She says that this is different because here the Teamsters waited for the concrete to be batched and loaded into the trucks before walking off. She doesn't actually explain how that's different from the poultry plant case. Which is probably because she can't. I mean, I think they're functionally identical.

0:15:18.1 Michael: They waited till the chickens were on the line.

0:15:21.5 Peter: Yeah, exactly. They're both situations where the union timed the strike basically to ensure product loss. And again, what's interesting about the majority is that she says like, well, this case is different, but she never actually lays out the facts of those cases. The poultry cases. Ketanji Brown Jackson is the one in her dissent who actually describes what happened in that case. And the majority is obviously avoiding describing the case, because then you would realize that it's pretty much the same as this one. And it would be obvious that she's just bullshitting. So this brings us to what I think is one of the major problems with this case, which is that there's just a total lack of clarity about what is and is not allowed. The court is saying you have to take reasonable precautions to protect company property, but they don't really explain what that means.

0:16:07.9 Peter: Apparently it means you can walk off when a lot of poultry is on the line at a poultry plant, but you can't walk off after concrete has been batched and loaded onto trucks. That is all we know about this rule. As far as I can tell. That ambiguity creates a problem because now unions don't really know what sort of strike is going to lead to them being sued for damages. And moreover, think about this big picture. The entire point of strikes is to cause economic damage to the employer. That's the union's leverage. So you can't have a strike without economic damage to the employer. So when you introduce the idea of liability for economic damage, that's just like incidental to a strike.

0:16:49.9 Peter: You're already treading a bit on the core purpose of a strike, and you're placing a legal obligation on the union to mitigate the natural consequences of a strike for the employer. And that's creating a very tenuous, almost inherently contradictory rule.

0:17:09.1 Rhiannon: Totally contradictory. Yeah.

0:17:10.8 Peter: And it just feels like it's handing management a weapon or at least ensuring that unions feel as though management has a weapon. 'Cause it's unclear how this would work in a lot of other cases, but that uncertainty is sort of looming over unions now. They don't know exactly what they might or might not be sued for. They just know that they have to take reasonable precautions to avoid damaging the company's property. What exactly is reasonable? No one could tell you.

0:17:45.1 Rhiannon: Right. And that fear and that kind of uncertainty in the union, that's disempowering. It's kind of like chilling speech. When the government does something that punishes somebody for some kind of speech or what have you, and that chills other people from exercising their right to free speech, etcetera. That chilled speech. There's the same kind of effect here that you're chilling a union's activity by creating ambiguity, by creating uncertainty about what it is they're allowed to do without getting sued over it.

0:18:17.8 Rhiannon: And so ultimately this is about disempowering unions, making unions feel like they have fewer options for how to exercise, use their leverage against employers.

0:18:25.0 Michael: That's right.

0:18:25.8 Peter: The majority is like implicitly painting this picture of like a really polite strike, you know what I mean? Well, we'll keep the truck safe and we'll make sure the concrete gets where it needs to go. And what exactly do you expect the union to do here? At some point they're doing work and they stop doing work. That is what a strike is. There will be work left, not done. That's how every strike is going to proceed. So it's just sort of what are unions supposed to do? How much of an effort do they need to make to make sure that the liquid rock that their employer is pedaling is safe?

0:19:13.6 Peter: And so I've talked about the sort of like substantive meaning of the majority, but I think it's important to realize that a lot of this discussion happens through the lens of these various procedural mechanisms. And the concurrences and the dissent are like very heavy on technicality and procedure with the first issue being, as I mentioned, preemption. And just to sort of reiterate, preemption is this idea that the federal government is supreme. So when the constitution says Congress you can regulate commerce. That means they can regulate labor. So they pass labor laws. What that means is that implicitly states can't pass laws that interfere with federal labor laws. Those laws would be "preempted". That's what preemption means in this context. So in the '50s you had this case Garmon that basically said, Yeah, that applies to the National Labor Relations Act, Garmon Preemption they call it. So a lot of this fight is over what exactly Garmon Preemption means. Does it mean that Glacier Northwest can't sue the Teamsters here? And the other thing going on here is that the NLRB, the National Labor Relations Board is a body created by federal law to handle labor disputes.

0:20:39.2 Peter: And what the court has done here is sort of end run around the NLRB. There's a process here that you could imagine where the NLRB looks at this case. These are the guys with the expertise. They are specialists in labor law. That's half the point of the NLRB. And they do their little like findings of fact and they figure out what happened and whether they think it violates labor law. And then you can move into federal or state courts afterwards, after it's sort of gone through the ringer of the NLRB. But what the court has done is sort of like intercepted this case before the NLRB handles it and they're sort of making their own determinations about what they think happened. And that sort of usurps the NLRB's authority. This is a big part of like Ketanji Brown Jackson's dissent, that this is sort of like procedurally improper. And so you have all of these like technicalities swirling around here and I just wanna sort of set that up before we start talking about the concurrencies in the dissent.

0:21:49.5 Michael: Yeah. So there are two concurrences, one by Alito and one by Thomas, which is joined by Gorsuch. The Alito one I don't think is particularly important or interesting. He just wants to make it easier to punish unions and workers for damages during strikes. And that is not surprising 'cause he's an elitist prick. Who hates the working class.

0:22:10.8 Peter: I do think it's worth pointing out, we have like a greater discourse about like who are the real allies of the working class. And you have your sort of quintessential Republican justice here and he's saying that unions shouldn't just be liable where they don't take reasonable precautions. They should be liable for basically any damage that they knowingly caused In the process of a strike. Something that would truly and deeply kneecap unions in this country.

0:22:41.6 Michael: Yeah. The Thomas concurrence I think is worth discussing a little bit. It's very brief and if you read it on its own, it would seem unremarkable. But that's because it's being really dishonest. Peter mentioned preemption and this case in the '50s called Garmon, which has a special preemption in labor relations. And he talks about this like, Oh, it's so weird and broad and not in line with anything else in our preemption law, and so we should just do away with it. Which is kind of remarkable in how much it omits from the context and history of labor law. And the whole purpose of the NLRA and the National Labor of Relations board itself. Ketanji Brown Jackson's dissent gets into this and so I don't want to like rehash too much of it, but mainly her point is that Garmon Preemption is more of a gatekeeping preemption. It's not an end of the case preemption. It's a start of the case preemption. It's very different because the first question is, Well, is the conduct potentially protected labor activity? If it's not, then your state court case can proceed. But if it is, then it has to happen on the terms of the NLRA. And so before we have any state court proceedings, the NLRB, the National Labor Relations Board might wanna weigh in on whether something is protected activity.

0:24:22.1 Peter: You mentioned that they're experts and I think it's important to highlight that like the purpose of the National Labor Relations Board is to sort of handle labor disputes. But the function of it is to act as an agency that has actual expertise in a very complicated area of the law. And what's happening here is that Thomas is like, Eh, do we really need that?

0:24:46.8 Rhiannon: Right.

0:24:47.0 Michael: Yeah, Exactly. Which makes it such a dishonest opinion because he couches it as if it's something very minor. This is a two page concurrence where he's just like, This is a weird preemption scheme. We should do away with it. What he's actually recommending is like a radical rethinking of how national labor policy is made. Because these determinations are heavily policy influenced. Like that's the whole point of having an administrative agency here, is to have a policy mind when you're making these determinations to make sure that labor relations fit with the current government's desires. So it's really radical and really dishonest and I thought it was worth explaining that.

0:25:38.8 Rhiannon: Yeah. So we have the two pretty kooky, quite radical concurrences here. Maybe I'm grateful that they're not the majority. But Thomas and Alito are gonna Thomas and Alito. Moving to the dissent though, something really unique here. Solo dissent by a justice who is in her first term on the Supreme Court. This decision is eight to one. The other liberals, Sotomayor and Kagan are in the majority here. Ketanji Brown Jackson is on her own dissenting in this case. And there's kind of maybe two big buckets of what she's talking about in the dissent. She talks a lot about this preemption stuff, Garmon precedent, other labor law cases that have been decided that should inform the procedure here. Who the court should be deferring to, etcetera. And then another kind of bucket of what she's talking about later in the dissent is sort of like labor rights.

0:26:32.7 Rhiannon: Like the right of a union to strike and the importance of that right. So Jackson's argument is that under Garmon, under these preemption procedures that the court has upheld for a long time, a court that has presented with a tort suit based on a union striking should allow, like Michael said, the National Labor Relations Board, the NLRB to determine whether the union's conduct is lawful. In this case, the National Labor Relations Board, the general counsel for the board filed a complaint with NLRB after doing an investigation of the facts. And Jackson says, Look, that seems to strongly indicate that the union's conduct here was at least arguably protected by the NLRA. So the board should have further proceedings on this and make their own administrative ruling about this before a totally separate tort suit is filed in state court.

0:27:30.6 Michael: And proceeds.

0:27:30.7 Rhiannon: And proceeds in state court.

0:27:31.7 Peter: Yeah. And important to note that what Ketanji Brown Jackson is arguing here is essentially this needs to go through the NLRB first. And then you can bring it into state court and settle this shit. But like we need to have the actual experts, the agency that exists for this purpose, do its job, figure out what happened here, and then we can move forward. That's the purpose the agency serves.

0:27:58.0 Rhiannon: Exactly. And Jackson points out that like without the full NLRB proceedings on this, what the majority has done is accept one side of the story. They accepted Glacier Northwest's allegations in their tort complaint. Just one side of the story, they accepted those as the facts, accept those as true and issues the majority opinion from there. So Jackson says, "Instead of modestly standing down, the majority eagerly inserts itself into this conflict proceeding to opine on the propriety of the union strike activity based on the facts alleged in the employer's complaint." She goes on to say that what the majority is doing is it's trying its own hand at applying labor law policy. And applying NLRB's previous decisions to a situation that Jackson acknowledges like this is pretty novel. Like it's okay. Let's say that it's undecided, it's novel. It might not be clear on the facts like what the NLRB would decide here, whether the union's activity was lawful or unlawful protected or unprotected.

0:29:00.0 Rhiannon: But where there hasn't been a clear answer from the NLRB before, Jackson says this issue that brings up new legal questions and questions about where that line is drawn, et cetera. Jackson says, "In the course of inappropriately weighing in on the merits of those questions, at this stage, the majority misapplies the board's cases in a manner that threatens to impede the board's uniform development of labor law and erode the right to strike." She's saying let the law be the law. Let the procedures be the procedures. Congress has set up for the development and progress of labor law in this country and labor policy to be run by the NLRB through the statute, the National Labor Relations Act. And because the court has stepped in here where it shouldn't, you have fucked with not only how the board develops labor law, but you've also fucked with the right to strike. Which of course is the point.

0:29:54.4 Peter: And you have like Amy Coney Barrett looking at this situation and trying to analyze it along with the rest of the majority. These are people who not only don't really understand the intricacies of labor law, they've never even had real jobs. You know what I mean?

0:30:17.1 Michael: They don't even understand labor.

0:30:17.2 Peter: They have no idea what is happening at a place where they are batching and moving and selling concrete. If you put Amy Coney Barrett in that plant or whatever with a little hard hat, she would die in like an hour and a half. Just fucking full Hans Solo in the concrete. You know what I mean?

0:30:36.6 Rhiannon: Absolutely. Let's make it even more real. Amy Coney Barrett, nor any of these justices know what it's like to have a job where your employer won't raise your wages. Where you don't have healthcare coverage for your kids, where you need a union to be bargaining on your behalf for your rights, for your livelihood. They don't know shit about this. So Ketanji Brown Jackson is basically saying, the nine of us do not know shit about this. There are procedures and a legal process for figuring it out and we're not letting that process move forward. She goes through in like a really thorough way in the dissent what the NLRA says. Like what the actual law that governs labor law and policy in the US what it says, what rights it confers onto workers and unions the right to take collective action, the right to strike all of that stuff.

0:31:27.7 Rhiannon: But she also emphasizes that a major part of the statute, a major part of what the NLRA did was create the NLRB. The board. So she goes through the structure of the NLRB. She's like it's composed of five members who are appointed by the president. It has an independent general counsel. The general counsel conducts investigations. She goes through the process by which someone makes a complaint to the board, the process by which the board investigates, and then how an administrative law judge makes a decision on the matter. All of this she's describing is to show that the Supreme Court, like the nine of them, are not allowing this massively important agency with critical expertise and an entire system they're not allowing them to do their thing. The majority's jumping in, they're quite detached from the expertise, from the situation on the ground, from the facts, the process, while if they had let the board proceed, Jackson says the board is, "Armed with its own procedures and equipped with its specialized knowledge and cumulative expertise."

0:32:28.4 Rhiannon: And then back to the essential question in the case, which is like is what the union did protected strike activity or not? Drawing that line Jackson says between what is activity that counts as a protected strike? What is not protected? What can be disciplined by employers? What is something your boss can sue you over? Like that's a complicated fucking question factually and legally. So let the agency do what it's supposed to do.

0:33:00.6 Rhiannon: Moving on though. She moves on to like the broader sort of importance of the right to strike and how the majority opinion, how this ruling really actually impedes on the right to strike disempowers unions. And that's obviously the point of the ruling. She's just not impressed by the supposed damages that Glacier Northwest suffered. She says, "A strike by definition is a concerted stoppage of work by employees or any concerted slowdown or other concerted interruption of operations by employees. When employees stop working, production may halt, deliveries may be delayed, and services may be canceled. At the risk of stating the obvious, this means that the worker's right to strike inherently includes the right to impose economic harm on their employer."

0:33:46.5 Rhiannon: Period. That's it. The threat of economic harm to the employer. The leveraging of economic harm to a company that was all considered and acknowledged when Congress passed the NLRA. Those are economic weapons. Those are economic tools that we give and protect in unions because economic weapons are used against them by the corporations these workers work for. She sort of ends on, "Again, emphasizing that this decision erodes that right to strike that very important right to collective action and inherently right to enact some economic harm on a company." She says that there is, "A general rule that labor strikes are protected even when the workers withdrawal of their labor inflicts economic harm on the employer." And she goes on and says that workers, "Are not indentured servants bound to continue laboring until any planned work stoppage would be as painless as possible for their master." On her own saying this shit go off Ketanji Brown Jackson.

0:34:56.4 Peter: She also makes a pretty sharp point, which is there are rules against like damage to like affirmative damage to property.

0:35:02.7 Rhiannon: Yes. Yes.

0:35:03.5 Michael: Like you can't like throw a brick through your employer's window and be like well that's part of the strike.

0:35:07.0 Rhiannon: Right. Right. Exactly.

0:35:10.8 Peter: Right. You can't vandalize. You can't sort of affirmatively cause damage that's different from damage that is incidental to the strike. And that's the distinction that the court should be trying to draw, but that's not really the distinction that Amy Coney Barrett and the majority draws. So she just sort of points that out. There's a lot of nuance here, but this is the line that the NLRB has historically drawn between protected and unprotected damage. And that's what we should be focused on.

0:35:39.4 Michael: Right. Yeah. She makes the point at one point that like whether this was protected strike activity or not might turn on something as like fact specific as whether the drums and the trucks were left spinning or not. Making these determinations based on like allegations and emotion or a complaint rather that haven't been like investigated or evaluated by a fact finder or anything is not the proper way to do this. I don't think it's a surprise that arguably Biden's most liberal agency is the one that's having its sort of procedures preempted here. This is very in keeping with a sort of imperial Supreme Court we've talked about before, that is flexing its muscle and sticking its nose in all these different agency's businesses. But stepping in before the board is even ruled and sort of preempting them feels very much like a shot across the bow to me.

0:36:49.7 Peter: Yeah. It feels like it's part of their broader attack on the administrative state.

0:36:50.6 Michael: Yes, Absolutely. And the NLRB has been one of the most liberal parts of the Biden administration.

0:36:58.2 Peter: A hundred percent. Yeah. And just to give people some context here, the system where the NLRB sort of initially hears these complaints, and then if someone disagrees with them, they can be appealed into the federal courts. That's a pretty common system for agencies like this. Like if you have an employment discrimination complaint, you don't take it straight to court. You take it to the EEOC. They will handle it before you can bring it to court.

0:37:27.5 Michael: Immigration decisions are made by administrative law judges and immigration courts and then maybe can be appealed to federal courts.

0:37:33.4 Peter: Right. And so what the Supreme Court is doing, and maybe more importantly, what Glacier Northwest really wants to do is end run around that system. What Glacier Northwest wants to do is avoid the NLRB and take the union to state court, which would be very beneficial for them because state court judges don't understand shit about labor law. Don't really understand how strikes work. So it puts the union on their back foot a bit. What the company wants to do is create a vector of attack against unions outside of the agency framework that Congress has created. And you can contextualize this within the broader conservative opposition to the administrative state within the Supreme Court's usurpation of the administrative state's power and Glacier Northwest, and employers know that the top of the American judicial system is now run by conservatives. You've got the Supreme Court backstopping, all of this.

0:38:34.0 Peter: So there are a ton of incentives for companies to try to bring their grievances against unions outside of the NLRB process, see if you can drag it into state and federal court as much as possible, cross your fingers, see if you can run it up to the Supreme Court where you're probably gonna win.

0:38:55.3 Michael: Yeah.

0:38:56.0 Peter: We've seen the court kneecap agency discretion in various ways and all of these major questions cases and a shit like that. But this is interesting because there is a pre-established process for handling these matters, and the court is basically saying you don't really have to do that.

0:39:17.6 Michael: Yeah.

0:39:17.7 Peter: If you wanna operate outside of that process, you can. It doesn't really matter that Congress created that process.

0:39:23.1 Rhiannon: Do you all have thoughts on why the liberals join the majority except for KBJ? Why are Sotomayor and Kagan here? Eight to one.

0:39:31.1 Michael: My guess would be there was some sort of negotiation and that this was an agreement for a narrower ruling, where one of those two concurrences I discussed could have been a potential majority opinion if the libs were not going to agree to a half measure. Because this doesn't settle the case yet. This wasn't a final determination. Not anything. This wasn't saying the union is liable or they did interfere with anything, this is just saying a state court proceeding might be able to proceed and go forward. So I think there's a sense in which it's kicking the can down the road a little bit, and so Kagan and Sotomayor took that as an olive branch, but I don't know that it was worth it.

0:40:21.0 Rhiannon: Right.

0:40:21.6 Peter: Yeah, I would say that that is a relatively likely scenario that they sort of said, "We'll join this and make this look like it was less of a controversial decision in exchange for it being less aggressive." Option number two is that this is sort of a tricky legal question, which KBJ admits, right?

0:40:41.1 Rhiannon: Yeah.

0:40:41.8 Peter: You were using the example of like, let's say there's a FedEx union and they strike, a FedEx pilot can't just parachute out of the plane mid-flight and be like, "Striking."

[laughter]

0:40:55.3 Peter: Like just let the plane crash into the ocean or whatever, and let's say no one's on it.

0:41:00.9 Rhiannon: It's just the packages. It's just the packages.

0:41:02.0 Peter: Just the packages. I think we could all agree that there should be some element of the law that prevents something like that from happening.

0:41:10.6 Michael: Right.

0:41:11.8 Peter: On the other hand, there are a lot of different types of economic damage that are just incidental to a normal strike. It's hard to draw that line, and maybe Sotomayor and Kagan were just sort of swayed by this general argument that this is complicated and the union should have some obligation to take steps to avoid damage, and they're sort of implicitly saying, "We don't think that this is so bad."

0:41:36.2 Michael: Yeah.

0:41:36.9 Peter: So yeah, I think that's really it. Either they did a little bit of behind the scenes negotiating for a better outcome or they were just more or less compelled by this, and they thought that it was tricky and basically Amy was close enough.

0:41:49.2 Michael: Yeah.

0:41:50.2 Rhiannon: I don't like it.

[laughter]

0:41:52.7 Peter: It might be worth in that context discussing why so many unions kind of breathed the big sigh of relief when this case came down, and maybe what would have drawn Sotomayor and Kagan to join the majority because the worst case scenario here was very bad. Of course like we've mentioned, every strike involves damage to the employer, so if the court had pursued a very broad theory of union liability, could have been devastating for unions. If they could be liable for any employer losses during strikes, that might have genuinely ended strikes in this country.

0:42:28.3 Michael: Ended labor as a power entirely.

0:42:31.0 Peter: Right.

0:42:31.3 Rhiannon: Right.

0:42:32.8 Peter: So I think a lot of labor advocates were comfortable with this outcome given the stakes. And many smart people, whose work I respect, who know more about this than me have argued that this case was pretty narrow and shouldn't be too impactful. But I still believe after reading it, that the vagueness of this case is dangerous, that it could chill union activity, and it opens the door for strategic lawsuits by employers, especially very wealthy employers. If a Starbucks union decides to walk off at 9 AM, are they responsible for the cost of spoiled food in every store?

0:43:09.5 Peter: I'm actually not sure. I really don't know under this ruling where exactly that falls and that uncertainty might prevent strikes and might just allow a company with a lot of resources to squeeze unions. Sure, you can walk off, but do you want your union to be immediately attacked for damages by a massive corporation when you make 10 bucks an hour or whatever? Is that something the union can sustain? We're talking about a very precarious situation potentially.

0:43:38.4 Michael: Yeah.

0:43:40.4 Rhiannon: Yeah, and it's not just the sort of ambiguity, uncertainty kind of chilling that I mentioned earlier about union activity and how they decide to strike and when and what collective action they take, it's also like suing a union, this is material consequences. This is punishing unions materially, taking their money, making them literally pay for engaging in collective action, and that is incredibly chilling also to any union, to workers considering a striking or taking collective action. This is materially damaging and in line with a long line of jurisprudence from the Supreme Court that allows unions, not just sort of confines their power, limits their power in taking collective action, but also materially damages them, limits their monetary resources so that they are less powerful institutions.

0:44:36.6 Peter: Yeah.

0:44:36.9 Michael: I think, going back to something I was saying earlier, other people who should be chilled by this, who should be worried by this, it should be other administrative agencies. The Biden administration, Democrats in general. Realistically speaking, having that sort of legislative tri-factor, where you have the presidency and both houses of Congress and can pass laws on party lines, unlikely to happen again for another 10 years plus, which means most policy-making in the next decade for liberals will be coming from administrative agencies.

0:45:16.2 Rhiannon: Yeah.

0:45:16.6 Michael: And in a lot of ways, this was kind of a narrower case, but procedurally, it was very radical and that's not very sexy to say on a podcast or whatever, and it's hard to get people scared about it, but it should be scary if you care about governance, that the court is willing to step in so early in the agency process and signal how they think the agency should rule.

0:45:43.3 Rhiannon: Yeah.

0:45:43.4 Peter: Yeah.

0:45:43.8 Michael: Beforehand, and issue these concurrences where they're sort of contemplating kneecapping the agency's jurisdiction altogether in Thomas' case, or at least really cutting them out of the process.

0:45:57.4 Peter: And signaling that no matter what position the agency takes, as union power grows in this country, and it finally is growing for the first time in decades, they're signaling that they're open to arguments from management, right?

0:46:13.0 Michael: Yes.

0:46:13.6 Peter: About what can be done.

0:46:14.6 Rhiannon: Yes.

0:46:14.7 Michael: Yes. So I think this is very much a court that is like flexing right now. This case, whether or not Sotomayor and Kagan negotiated to get a narrow ruling or this was just because they considered an opening salvo or whatever, I think this should be concerning for everybody who works in policy in the executive branch. I'm not sure that too many of them are awake to this just yet, which is a shame.

0:46:45.2 Peter: Yeah. What did you guys think about Amy? I feel like this was the first opinion of hers where I was trying to pay attention to her style. I thought sentence to sentence, she's fine.

0:46:57.7 Rhiannon: Fine, yeah.

0:47:00.2 Peter: But not like a compelling writer.

0:47:00.3 Rhiannon: No.

0:47:00.1 Michael: No.

0:47:01.4 Peter: I'm stuck on her being like, "There were these other cases that the union argues should dictate what happens here, but this case is different because of this... "

0:47:13.5 Rhiannon: This case is different 'cause trucks...

0:47:15.0 Peter: She's saying a thing and then not explaining why that's a material difference. Just sort of like saying it and not even describing the cases that she's contrasting.

0:47:23.5 Rhiannon: Right.

0:47:24.3 Michael: Yeah.

0:47:24.7 Peter: I thought it was sort of like surreal to read. It's one of those things... It created a feeling I get when I read Roberts where I'm like, "Did I miss a sentence?"

0:47:31.7 Michael: Yeah.

0:47:31.8 Rhiannon: Yeah, the vibe of logic, the kind of like tenor of logic.

0:47:36.2 Michael: The performance of argument...

0:47:37.7 Rhiannon: Yes.

0:47:37.7 Michael: Without actually being an argument. Yeah.

0:47:40.0 Rhiannon: The performance of analysis, of legal analysis, when the substance is really, really not there, and yet it's certainly far from compelling, right?

0:47:49.7 Michael: Yeah.

0:47:50.2 Rhiannon: She tries to get compelling with like, "The concrete was an emergency," but it's just not convincing, Amy. I just don't think it was that big of a deal, mama.

0:48:00.5 Michael: Yeah. The clock is ticking in her head like when they cut to commercial on 24 or whatever. [laughter] Jack Bauer desperately trying to get to Glacier Northwest to save the concrete. [laughter] It's also like, you read her opinion and you're like, "This is kind of mid." And then you read KBJ's dissent and you're like, "Oh God. There is no comparison like at all."

0:48:22.1 Rhiannon: Yeah. There's no competition. Yeah.

0:48:23.0 Michael: KBJ's very clear, like has a real handle on the history and the purpose and the structure of the law and how it fits into the broader scheme of the federal government, and it just makes Amy look just like a B law student or something, like writing her best brief or whatever, compared to an actual intellect.

0:48:48.4 Peter: I also think KBJ, I feel like she sort of combines the strongest elements of Kagan and Sotomayor. She's sort of like ideologically kind of woke, but also very rhetorically sharp, very technical in a lot of ways, and I thought it's a strong dissent, especially in like an eight to one kind of situation, to be that thorough. Her dissent is more than half of the total opinion. It's longer than the majority and concurrences combined.

0:49:15.9 Michael: Yeah. We should mention, by the way, we said when Biden a candidate that KBJ would be his nominee and we were right, and when she was his nominee, there was some debate as to whether she would be good on labor issues, and we said that debate was stupid and she would be good on labor issues. And we were right about that too, and I just wanna point that out.

0:49:37.3 Peter: I will say, I listened back to that episode and I was more like, we don't have a lot of insight. So I think a lot of the discussion was actually just between us.

0:49:47.0 Rhiannon: We didn't say it on mic? We didn't say it on the recording?

0:49:49.9 Peter: Not really not...

0:49:51.8 Rhiannon: We definitely said it, like the three of us, I mean.

0:49:53.8 Michael: Well, I definitely posted on Twitter and you can go search my old tweets if you can get me unbanned.

[laughter]

0:50:00.6 Peter: Right, right.

0:50:00.7 Michael: I do think that highlights that it's a mistake to assume that democratic appointed judges have the same ideological leanings as a center-left democratic politician. I think the courts is one area where Democrats tend to generally nominate people to their left, and I think that's part of a function of the state of the law itself too, where there's not really space for a true communist anyway or anything like that, but...

0:50:34.8 Rhiannon: Yeah, I mean, even talking about like the bounds of this opinion, right?

0:50:36.8 Michael: Right.

0:50:37.6 Rhiannon: I've been thinking about that like, true direct action is never going to be legal. This whole legal analysis, this entire body of law about what a worker can do on the job to pressure their employer to... It's incredibly liberal, right?

0:50:56.5 Michael: Right.

0:50:58.6 Peter: Right. I mean, it's implicitly within the bounds of these laws and institutions, right?

0:51:01.2 Rhiannon: Exact, exactly. Yes.

0:51:02.4 Michael: Right. So I feel like this is an area where the equilibrium sort of favors just nominating a bunch of strong liberals, who are liberal still, who believe in the rule of law and the system, but who are pretty much maximum left that the system will allow.

0:51:23.9 Rhiannon: Yeah.

0:51:24.0 Peter: Right.

0:51:24.2 Rhiannon: As progressive as a judge in federal court can be. Yeah.

0:51:30.1 Peter: Yeah. And it's probably worth adding, I think most intelligent people, lawyers who follow this stuff knew that KBJ was gonna be pretty good.

0:51:39.4 Michael: Yeah.

0:51:39.9 Peter: I think it's fairly clear that she's the strongest on the bench from the left.

0:51:42.4 Rhiannon: Yes.

0:51:43.1 Peter: And I think it's easy for sort of neutral observers who aren't lawyers, and that's probably a lot of our listeners, to imagine that someone like Biden, who's so mediocre and often awful across various issues, to imagine that he would be terrible on this too. And it's just not the case. So put your energy where it needs to be, and I think you have to sort of admit, even if you're in many ways a Biden hater and you know I am. You have to sort of concede where someone is good and Biden is about as good as you're ever going to get in our modern political milieu on this shit. And I say that to emphasize that it's time. Sawania.

0:52:31.4 Michael: Sawania. Queen.

0:52:34.8 Peter: It's a wrap. Ma'am...

0:52:37.3 Michael: We love you, we respect you, and we would love to see you have a great impact post-court in your retirement.

0:52:45.8 Peter: Absolutely. On a beach, perhaps. Enjoy yourself, queen.

0:52:50.8 Rhiannon: No, fuck a beach. I need you talking. Get off the court so you can talk.

0:52:54.9 Michael: Yeah, and then go to the beach.

0:52:56.7 Rhiannon: Right. Right. Zoom in from the beach, I don't know.

0:53:00.3 Peter: I'm trying to tempt her off not to be like, Oh, so you could be on C-SPAN right now.

[laughter]

[music]

0:53:12.2 Peter: Next week, premium episode. We're gonna talk about the failed constitutional amendments over the course of this country's history. There have been several from slavery to child labor, to women having equal rights. All of the controversial issues. We're gonna talk about them, we're gonna talk a little bit about why constitutional amendments never happen and are pretty much for sure never going to happen again, and what that says about our stupid founding fathers who didn't know shit about anything. Follow us on social media @fivefourpod, head on over to fivefourpod.com/support to subscribe to premium episodes. Our website also has merchandise and we just added some.

0:54:07.5 Rhiannon: Yeah.

0:54:08.6 Peter: Until now, all of our merchandise has been implicitly threatening the life of a Supreme Court justice, but recently someone was like, "Hey, what if you just had stuff that had like 5-4 on it, that way I could wear it in public."

0:54:24.9 Rhiannon: Right, like a logo, perhaps.

0:54:27.4 Michael: Yeah.

0:54:28.2 Rhiannon: Or you can still get a t-shirt that has a Molotov cocktail on it.

0:54:31.0 Peter: Yeah, we still have... We're providing the full spectrum.

0:54:37.8 Rhiannon: Right, exactly.

0:54:40.1 Peter: All right, thank you for listening. We'll see you next week.

0:54:43.0 Michael: Bye everybody.

0:54:44.0 Rhiannon: Bye.

0:54:44.8 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan Debrouwer. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks, @ChipsNY. And our theme song is by Spatial Relations.

0:55:13.8 Michael: You have no idea how angry Elena is at me because I suggested this like 18 months ago and nothing happened, and now she's convinced that I just told her, I suggested it and lied to her.

0:55:26.0 Rhiannon: The three of us have each suggested this multiple times over the past four years.

0:55:29.6 Michael: Thank you.

0:55:30.1 Peter: Yeah.

0:55:30.6 Rhiannon: We had just never done it. I know that I've suggested it, Peter has suggested it.

0:55:35.0 Peter: Absolutely.

0:55:37.0 Rhiannon: Oh, now we have the merch. It's at the website fivefourpod.com, you click on Merch and you can get a t-shirt that just says 5-4.

0:55:44.8 Peter: A t-shirt that you can wear safely in public.