There are two important recent legal decisions that I am reporting on this month. They demonstrate a huge disconnect between the approach of the National Labor Relations Board and the United States Supreme Court’s concerning labor management relations. While the NLRB is attempting to restore a long-established precedent that has guided the relationship between labor and management for decades, SCOTUS is issuing decisions that are intended to significantly weaken organized labor’s ability to effectively exercise rights protected by the National Labor Relations Act. This dichotomy of approach is as profound as it is telling that political influences control how decisions of these adjudicatory bodies are made.

On June 1, 2023 SCOTUS issued a decision in Glacier Northwest Inc, vs. International Brotherhood of Teamsters, Local 174, 598 U.S. ___ (2023). Here the court determined that a state court damages suit against the Teamsters could proceed for employees’ abandonment of cement mixing trucks during a strike. The Washington Supreme Court dismissed that suit and held that the issue should be decided by the National Labor Relations Board. This concept is known as federal preemption.

SCOTUS reversed the decision and held that the damages suit could proceed because the employer’s complaint asserted that the union took “affirmative steps to endanger the employer’s property rather than reasonable precautions to mitigate the risk.” The majority decision ignored the fact that the National Labor Relations Board had just issued a complaint against the employer finding that the union had engaged in protected activity. By doing so this pernicious decision marginalizes the very administrative agency that Congress has entrusted with making decisions and interpretations of the applicability of the National Labor Relations Act. It should have at minimum stayed the state court suit until the NLRB could issue a factual determination whether the strike was in fact protected. Now there is a likely risk that the NLRB and the state court will issue conflicting rulings. Further the holding will likely have the effect of chilling unions’ ability to strike for fear that they will be subject to a damages action.

On the other hand, on June 13, 2023 the NLRB issued a decision in The Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, IATSE, 372 NLRB No. 95 (2023) that restored the original common law agency right-of-control test that is used to determine whether a worker is an employee or an independent contractor. In doing so it reversed a Trump era NLRB decision that stated that entrepreneurial risk and/or opportunity was the single most important factor in the right of control test. Under that standard, workers are more likely to be deemed independent contractors rather than employees.  In Atlantic Opera the NLRB clearly stated that no one factor of the test was more important than any other.  

These two decisions do not even themselves out. Obviously, the Supreme Court can inflict irreparable damage on employee’s protected rights. Employees must be cognizant of this fact and seek to strengthen state law until balance can be restored.

Harvey S. Mars, Esq. is the Recording Vice President of Local 802 and an attorney with an extensive background in labor law. His officer’s column appears here in this issue.