For close to a century now, union officials have been using the ample special privileges afforded to them under the 1935 National Labor Relations Act, and the subsequent court decisions expansively interpreting the NLRA, as a ratchet to get America's federal judiciary to grant them new exemptions from the rule of law. Time and again, union lawyers have persuaded judges that the “aims” of the NLRA will be “undercut” unless their clients are allowed to get away with actions that ordinary citizens could not.

For example, by empowering the officers of a single union to act as the monopoly-bargaining agents of all the front-line employees at a business about matters concerning their conditions of employment and barring employees who disagree from representing themselves or selecting a different bargaining agent, the NLRA greatly increased organized labor’s ability to wage economic warfare against private-sector employers through strikes, hand-billing, and picketing. Workers who have no choice but to submit to union officials for issues concerning their pay and benefits are much less likely to defy strike orders, even if they personally disagree with them.

By design, the NLRA encourages union bosses and their militant followers to inflict economic harm on businesses and employees who get in their way. And judges have long interpreted the NLRA to allow union bullies to avoid being prosecuted or sued for acts that are normally criminally or civilly illegal. One of the most commonly cited NLRA precedents in modern labor law is San Diego Building Trades Council v. Garmon, a 1959 Supreme Court case that blocks union-free firms from suing for civil damages in state court when Big Labor deploys pickets against them to drive away customers, as long as the pickets refrain from violent behavior.

While any business that sought to damage a competitor by arranging to have it picketed could and very likely would face state civil penalties for doing so , Garmon grants an exemption to union bosses seeking monopoly-bargaining power over the business’s employees. So far, this exemption has not shielded Big Labor from civil liability when union thugs intentionally damage personal or company property. For example, in the 1997 case Clegg v. Powers, National Right to Work Legal Defense Foundation attorneys successfully argued that Virginia workers who were physically attacked and whose property was vandalized during a strike could file suit in state court against the Big Labor miscreants who were allegedly responsible for their injuries and losses.

Unfortunately, a bold gambit by Teamster union lawyers (who are being abetted by the Biden administration) is now dangerously close to openly or at least effectively extending Garmon immunity from civil liability to cases in which property is deliberately damaged or destroyed by union militants.

In Glacier Northwest v. Teamsters Local 174, a case that was argued before the Supreme Court this January and could be decided any day, union lawyers are arguing that no state civil damage liabilities may be awarded against their clients in connection with a 2016 work stoppage called against a Seattle company that mixes and delivers concrete, during which strikers calculatedly left a large quantity of concrete hardening in the drums of their delivery trucks.

Under questioning from Justice Ketanji Brown Jackson, Teamster lawyer Darin Dalmat bluntly acknowledged to the high court that his clients do not believe that a union “engaging in conduct for the purpose of destroying . . . property” ought to be sufficient for it to lose its Garmon protection from state court jurisdiction. Dalmat contended instead that deliberate property destruction is immune from civil damage lawsuits as long as striking union militants “take precautions” to ensure the destruction is not “excessive”! He acknowledged “burn[ing] down the factory” would be excessive but was unclear about where he would have the line drawn.

The Biden administration, represented at oral arguments by Justice Department attorney Vivek Suri, isn’t explicitly endorsing the Teamster lawyers’ radical expansion of Garmon. But Team Biden would have the high court achieve virtually the same result by empowering National Labor Relations Board attorneys, who are typically forced-unionism partisans, to block state civil claims by employers or employees for strike-inflicted property damage — even when the tortious acts alleged are not even arguably protected under Garmon.

The genuine solution to the conundrums raised at the Glacier Northwest oral arguments would be for the high court to put a stop to the pro-Big Labor inequities it spawned in Garmon by reversing this misguided decision and declaring that union bosses are just as liable for tortious actions in state civil courts as anyone else who intentionally damages or destroys property. But the best that can, in all likelihood, be anticipated is for the high court to refrain from inflicting even more damage on workers and businesses.

Mark Mix is the president of the National Right to Work Legal Defense Foundation and the National Right to Work Committee.