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Why going on strike could get much harder for American workers

Employees walk out as job unhappiness soars
Employees walk out as job unhappiness soars 02:06

Labor protests around the U.S. have surged during the COVID-19 pandemic as employees across a range of industries have pushed for better pay and working conditions. But a case the Supreme Court agreed to hear last week could make going on strike much more difficult.

In Glacier Northwest v. Int'l Brotherhood of Teamsters, a concrete company sued a union and accused it of intentionally destroying concrete during a strike. The high court will decide whether the company is allowed to sue in the first place, or whether federal labor law disallows it from suing. A decision in favor of the company would open the door to employer lawsuits anytime workers push back against their bosses' demands, affecting their willingness to strike, labor experts say. 

"The strike is an essential weapon," said Eric Blanc, a labor researcher and scholar who focuses on strikes. "Companies aren't a democracy … Without a threat to the bottom line, there's no incentive for management to heed workers' demands."

This year, thousands of nurses, therapists, nursing home aides, teachers, baristas and warehouse workers have walked off the job, with the number of strikes this year already surpassing last year's total, according to a Bloomberg Law analysis. Week-long strikes in 2021 were key to workers' securing raises and maintaining health care plans at John Deere, Nabisco and Kellogg. Notably, a third of these labor actions this year were by non-union employees, according to Cornell University

Deliberate sabotage?

Employees in the U.S. have the right to strike under federal law, but there are limits. For instance, workers can't commit crimes while picketing — a fact that is demonstrated by routine arrests during labor actions.

"If you punch someone in the face on the picket line, that's a crime. That's not covered by the National Labor Relations Act — that's assault," said Terri Gerstein, a fellow at the Labor and Worklife program at Harvard Law School. Likewise, federal law requires workers to take "reasonable precautions" to protect employers' property from being damaged in a strike.

Those are precautions that, according to CalPortland, a construction materials company that operates in the western U.S., its workers failed to take when they walked off the job in 2017. In filings before the Supreme Court, CalPortland, also known as Glacier Northwest, alleges that striking workers represented by Teamsters Local 174 "sabotaged Glacier's operations and intentionally destroyed Glacier's batched concrete." 

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According to the union, the workers left trucks running in the company's yard so concrete would not solidify in the drums, which would have damaged them as well as making the concrete unusable. But the materials still had to be thrown out, according to the company, which has sued the union for damages.

Washington Supreme Court dismissed the case last December, saying it was an issue for the National Labor Relations Board to decide, but the U.S. Supreme Court last week agreed to hear an appeal filed by Glacier Northwest. 

One strike and you're out

The nation's highest court has shifted to the right since its last major labor decision in 2018, when it ruled in Janus v. AFSCME that public unions are prohibited from requiring nonmembers to pay for the cost of representing them. Given the court's current political makeup, most labor observers expect the decision in this case to be bad news for the union in the Glacier case, and worker unions in general. 

"This case is saying, 'Unless you time your strike so it doesn't affect the company at all, the strike is illegal,," said Kate Bronfenbrenner, director of labor education research at Cornell University.

"By definition, workers have a right to refuse their labor, and that's going to have an effect on the company — that's the whole point of a strike," she said. 

Bronfenbrenner, Gerstein and other labor experts say a decision in favor of the concrete company would open the door to lawsuits against striking workers in any industry.

"Food spoils, food rots, so are people in supermarkets disallowed from striking? Are restaurant workers disallowed from striking?" Gerstein said. "If retail workers go on strike on Black Friday or during the first three weeks of December — there's so many situations you can think of" that would be affected, she said.

Indeed, the prospect of an economically crippling strike is a key motivator behind the Biden administration's efforts to mediate between freight rail companies and their workers who say they're overworked and denied sick time. The Teamsters, which represents hundreds of thousands of UPS workers, has made clear its willingness to strike next summer if the delivery company doesn't meet demands for cooler trucks and better pay.

But a Supreme Court decision in favor of Glacier could set a legal precedent enabling the shipping giant to effectively block a strike. 

"If the notion is unions can be sued if there's economic harm — incidental economic harm — to the employer, that will really thwart workers' ability to strike as one of the powers that they have," Gerstein said. "The potential implications to me are very serious."

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