Supreme Court deals serious blow to American workers’ right to strike | Opinion

The Supreme Court recently took a major step to weaken a basic protection of workers guaranteed by federal law: the right to strike.

On June 1, 2023, in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local No. 174, the court ruled that a union could be sued and held for the economic consequences of a strike when they are “foreseeable, aggravated and imminent.” Yet all strikes impose economic costs on employers — that is why they are effective — and it’s unclear what, exactly, will meet the court’s vague standard.

The case arose when drivers of cement trucks went on strike. Although they reported for work that day, they went on strike at the appointed hour and returned the trucks with the cement mixers turning. The cement within the vehicles was ruined, though the trucks were not damaged. The cement company sued the union for money damages for the cost of the lost cement. The Washington State Supreme Court ruled in favor of the union, holding that federal law barred their being held liable for the incidental costs attendant to a strike.

Opinion

The U.S. Supreme Court, in an 8-1 decision, reversed this ruling and said the union could be held liable for these costs. Justice Amy Coney Barrett wrote the opinion for the majority, and only Justice Ketanji Brown Jackson dissented. One of the mysteries of the case is why the other liberal justices, Sonia Sotomayor and Elena Kagan, did not join this powerful dissent.

The National Labor Relations Act protects the right of workers to strike. It has long been recognized that strikes are an essential tool for employees to bargain effectively and protect themselves. For this reason, the Supreme Court has long held that unions generally cannot be held liable for the economic consequences of their strikes.

The union did not give advance notice of their strike to the company. But federal law is clear that only health care workers are required to let employers know in advance of a strike.

To be sure, unions have no right to intentionally destroy the property of employers. A striking union cannot set an employer’s building on fire or throw bricks through windows. But nor can the union be held economically responsible because the employer loses money during the strike and others suffer. For example, the current strike by writers in Hollywood is costing networks and studios a large amount of money, and many who serve that industry are suffering economically. The law, though, has been clear that the union cannot be held liable for these costs; otherwise, strikes would be economically impossible.

Admittedly, there is a line to be drawn. For over a half century, the Supreme Court has ruled that this line is initially to be decided by the National Labor Relations Board, not the courts. The NLRB was created by Congress to be the experts in this area and to decide when a strike is protected by federal law. In fact, there is a proceeding pending before the NLRB concerning the strike by the cement workers against Glacier Northwest.

But the Supreme Court’s decision means that it’s now for the courts, not the NLRB, to decide this question, and the court recently ruled that the union could be held liable because the loss of cement met its test.

The problem is the vagueness of an “imminent” and “foreseeable” loss. It’s unclear how to distinguish ruined cement from the economic loss Glacier Northwest would have suffered if the workers never showed up serious for work that day. Or what of those engaged in construction who suffered losses because the cement never arrived on account of the strike? These losses, too, seem imminent and foreseeable.

The problem with such a vague standard is that employees and unions will not be able to know in advance what might cause them to be held liable and face damage suits. This inevitably will chill the exercise of their federally guaranteed right to strike.

Employees have relatively few tools that they can use to pressure employers to provide better wages and working conditions. It is why the right to strike is so important. Unfortunately, the Supreme Court has dealt it a serious blow in its decision in Glacier Northwest.

Erwin Chemerinsky is the dean and a professor at the UC Berkeley School of Law.