Unions' Right to Strike at Risk Before Supreme Court

Author: David B. Weisenfeld, XpertHR Legal Editor

January 11, 2023

A more than 60-year-old rule shielding unions from lawsuits for damages caused when their workers exercise their right to strike could be in jeopardy in a closely watched case before the Supreme Court.

During oral arguments yesterday inGlacier Northwest v. International Brotherhood of Teamsters, the justices considered whether unions can be held liable in certain instances for damages caused by a strike. A ruling for the employer could let employers sue unions in state court for alleged destruction of property during a strike.

The case involves cement truck drivers who walked off the job with trucks full of wet concrete. The employer argued that when a union deliberately orchestrates a scheme for the very purpose of destroying an employer's property, there is no plausible argument that the conduct is protected by the National Labor Relations Act (NLRA).

But the union's attorney countered that virtually anything could be considered "property" under the employer's argument.

How Far Does the Duty of Striking Employees Extend?

The National Labor Relations Board (NLRB) has held that a walk-off is protected, even when it is intended to cause maximum economic harm to an employer. But several justices suggested that this right is not unlimited.

"There certainly is a distinction between economic harm to the employer, which is at the heart of many strikes anyway, and intentional destruction of property," said Chief Justice John Roberts during the arguments. He added that it's the "difference between the milk spoiling and killing the cow."

Biden administration attorney Vivek Suri told the justices that the NLRA protects workers' right to strike, but also noted that they must take reasonable precautions to avoid damage to property.

"The key point that I would like to convey to the Court is that the mere spoilage of a perishable product after people walk off the job is not something that striking employees can be held responsible for," Suri said. The administration is supporting neither the employer nor the union, but wants a clear ruling that the NLRB should decide these cases.

Arguing for the employer, attorney Noel Francisco contended that the employees and the union took an affirmative act to put the employer's product in a vulnerable position. He also noted that states have an overriding interest in deciding state tort claims, so employers should be able to sue unions in state court in this type of situation.

But Justice Sonia Sotomayor countered that if an employee goes on strike, their duty to the employer has ended. "You're saying you as an employee have to continue an employment duty with me until all of my profits are safe," she told Francisco.

Secondary Economic Pressure

The union's attorney, Darin Dalmat, noted that the employer sued the union over a concerted work stoppage, conduct at the heart of the NLRA's protections. "Congress has proscribed certain forms of economic pressure. It's proscribed certain forms of recognitional picketing," he said. "Congress has recognized that inherent in the notion of a strike is an intent to inflict economic harm. That's what brings parties to resolution."

But the employer countered that this is not a case about the mere stoppage of work since concrete deliveries already were under way. "It's really no different than the riverboat crew that drives out into the middle of the river and then abandons ship," said the employer's attorney.

Justices Sotomayor, Elena Kagan and Ketanji Brown Jackson seemed to agree with the union that to the case should go before the NLRB first. But Justice Jackson wondered if the union had acted appropriately, at one point likening the conduct to "the arsonist who says, 'I'm going to walk away, but, as I do, let me strike the match and burn down the factory."

If the Supreme Court sides with the employer, it will deal a blow to organized labor and make it more difficult for unions to go on strike. A decision in the case is expected before the end of the Court's term in June.