There’s a saying you learn early in law school: “Bad facts make bad law.” Sometimes, the facts are so egregious that a judge wants to fix things, even if it means interpreting the law in a way that could cause unintended consequences later.
There’s a corollary to this saying: “Be careful what you wish for; you might get it.” This one also warns of unintended consequences.
Two recent labor developments remind me of the wisdom of these sayings. First, the Glacier Northwest Supreme Court decision. In that decision, the Teamsters and the National Labor Relations Board asked the Supreme Court to enforce a lower court decision that barred a cement company from seeking state tort damages for intentional damages caused during a strike. This is exhibit A for “bad facts make bad law” if you happen to be the Teamsters, the NLRB General Counsel, or unions in general.
In Glacier Northwest, the Court ruled 8-1 against the Teamsters and the NLRB. Not only did they agree that the company could seek damages for the outrageous and intentional damage caused by the Teamsters, but they even questioned (without deciding) why the NLRB deserves the special deference it receives under the Garmon pre-emption doctrine.
Garmon pre-emption requires most courts to stay out of labor disputes until the parties or the NLRB have had a chance to resolve them first. Basically, if a claim arguably is covered by the NLRA, then a court is supposed to defer any action on those claims until after the NLRB has had a chance to resolve them. That’s what happened in the lower court decision in Glacier Northwest. The Court would not let the company proceed with its tort claim because they ruled it was arguably related to the strike action.
This deference is a unique creation for labor cases, based on the idea that labor situations are complicated and that the NLRB has special expertise in these matters. But this deference may not be around much longer. In a concurring opinion, Justices Thomas and Gorsuch questioned whether Garmon pre-emption should even exist. They make a compelling case that letting the NLRB set the boundaries of what’s “arguably” covered by the statute essentially deprives states of any ability to act in labor matters, even when torts are committed.
In addition to the litigation over the tort damages, the NLRB has also issued a complaint against the employer, arguing that merely filing the lawsuit seeking to remedy the damages caused by the Teamsters is an independent violation of the Act. Justice Alito wrote another concurrence, joined by Thomas and Gorsuch, continuing the theme that the Board and the General Counsel don’t deserve much deference in cases like this. Alito even drops a footnote warning the General Counsel to drop the claim that filing the lawsuit itself is an independent unfair labor practice. He states, “If the state courts on remand dismiss this case on that ground, the decision, in my judgment, would be a good candidate for a quick return trip here.” Ouch.
If this had been a closer case on the facts, it might not have been such a clear crush, and perhaps Garmon deference wouldn’t have been so front and center. But now it is, and if this case does get dismissed again in the state court, I imagine Garmon pre-emption may be history. From the perspective of the General Counsel and Big Labor, bad facts make bad law indeed.
On May 24th, Minnesota enacted another captive audience meeting ban. Unions are pushing these state laws across the country, and they definitely fall into the “be careful what you wish for” category. Following several other states, Minnesota law prohibits employers from mandating attendance at a meeting discussing “religious or political matters.” It makes clear that meetings about the decision to support or join a labor organization qualify as political matters.
You might think, given the Supreme Court’s position in Glacier Northwest, state regulations like this might get some deference. Not so fast. The difference here is that the state is regulating speech that is clearly protected by BOTH the First Amendment and, in the case of speech about unions, the NLRA itself.
The reason this fits the “be careful what you wish for” category is that when the Supreme Court eventually gets to take a stab at one of these cases, the decision that comes down will make crystal clear that employers have a free speech right to hold mandatory meetings on any subject they want. They will clear the field from interference from states AND the General Counsel, who is independently trying to ban them by twisting the Section 7 right to refrain beyond recognition (and completely ignoring Section 8(c) of the Act).
There will be a lot more of these egregious decisions, laws, and ordinances coming over the next several years. That’s just the way our labor law system is designed. The good news is that this will create a lot of “bad facts” cases for the federal courts to make Big Labor regret what it wished for.
