How a 2017 strike could slam shut the new era of worker activism

Over 200,000 Americans went on strike in 2022, making it the hottest year for work stoppages since 2005. But a case argued before the U.S. Supreme Court this week could make striking, a right enshrined in labor law for nearly a century, much riskier for workers.

The case, Glacier Northwest v. Int'l Brotherhood of Teamsters, centers on construction workers in Washington who went on strike for a week five years ago, which among other things led to the physical destruction of some of the company's concrete as well as the loss of $100,000 fee from a client. After the strike, the company, CalPortland, sued the union for those losses. A lower court dismissed the case, saying the strike was a matter of federal labor law for the National Labor Relations Board, but the company appealed all the way to the Supreme Court.

Yet a decision from the high court could go beyond looking at whether the CalPortland workers who joined the strike and who were represented by the Teamsters, are liable for the company's financial losses. If the court rules in favor of Glacier, the ruling would give the green light for employers to sue their employees for striking, potentially chilling workers' willingness to challenge management on pay, safety and many other issues. 

"It's like allowing employers to put a tax on the right to strike," Sharon Block, executive director of the Labor & Worklife Program at Harvard Law School, told CBS MoneyWatch.

Right to strike mostly protected

"Right now, the general rule is that an employer cannot sue for damages for the result of a strike, except in limited circumstances," said Dan Altchek, a management-side labor lawyer at Saul Ewing. 

Those limited circumstances include deliberate property destruction and violence. For instance, taking over a company facility and vandalizing it is against the law, as the Supreme Court ruled in 1939 after a group of Chicago metalworkers staged a sit-down at their employer's factory. The court has also limited strikes in other ways, including ruling that employers could sometimes fire striking workers without repercussions.

Ever since the 1935 National Labor Relations Act gave legal protections to workers seeking a better deal, "there have been cases that come up that reset the terms, that tinker with the balance of power between labor and capital — almost always taking away power from unions and giving power back to employers," said Eric Dirnbach, a labor organizer and researcher based in New York.

"All these cases make striking harder and harder, which means unions do it less," he added. 

Despite the recent uptick in worker activism, strikes in the U.S. today are far less common than they were in the 1950s and '60s, when it was common to see hundreds of big stoppages every year in a workforce less than half the size of today's.

Walkout or conspiracy?

The strike at Glacier Northwest seems like hundreds of others. On Aug. 11, 2017, construction workers frustrated with the pace of their contract negotiations walked off the job. As they stopped work, they returned trucks loaded with concrete to the company's headquarters. Because concrete hardens as soon as it stops moving, the workers left the trucks' drums turning. Non-union workers at the company scrambled to empty the drums and save the trucks, which escaped damage. The strike ended a week later. 

CalPortland alleges that, far from a standard strike, the workers' action was "deliberately timed to destroy [the] employer's property" and that the company should claim damages from the union representing the workers, just as it would be able to in a case of vandalism. 

"The intentional destruction of an employer's property in the course of a labor dispute is not protected," former U.S. Solicitor General Noel Francisco told the justices on Tuesday as he argued for CalPortland. "Federal security guards can't leave their posts in the middle of a terrorist threat … A ferryboat crew can't drive their boat out into the middle of the river and abandon ship." The concrete workers should not have been permitted to walk out, either, Francisco claimed.

The problem with this argument is that the term "property damage" could encompass any damage that occurs during a strike. As Harvard's Block explained, that means Starbucks baristas who stage a walkout could suddenly face the prospect of being sued over milk that goes bad or coffee that goes stale during the stoppage. And supermarkets could sue striking deli workers for cold cuts that expire before the sell-by date. 

"You're saying, 'You as an employee have to continue an employment duty with me until all of my profits are safe.' That's what I see you arguing," Justice Sonia Sotomayor said in questioning Francisco.

Risky business

Staging a strike is a challenging proposition, even without the threat of such lawsuits.

"Already, when you go out on strike, you're saying, I'm willing to risk not getting paid, to give up my paycheck, to try to get a better deal. But to say, I'll give up my paycheck and I'm willing to risk a massive payout to these corporations? You could imagine a lot of workers not wanting to take on that risk," Block told CBS MoneyWatch.

A ruling by the Supreme Court against the union — which is widely expected given the court's ultra-conservative makeup — will affect all employees, not just those who work in manufacturing or those represented by unions, said Block and other labor experts. 

Many workers who don't belong to a formal union engage in activism on the job: One-third of the work stoppages in 2021 were led by non-union employees, according to research from Cornell University. And, if companies can turn to state courts in cases of "destruction of property," that means states will not only be interpreting federal labor law, but defining what counts as "property," Block said.

Property "doesn't just mean your physical structure — it's defined by state law," she explained.

The lawyer for the Teamsters made a similar observation in his argument Tuesday. "Property could be anything," he told the Supreme Court. "Property could be goodwill. Property could be money. Property could be intangibles."

What happens now?

The Supreme Court is expected to issue its decision sometime this summer. While the justices' questioning on Tuesday offered few hints as to which way they are leaning, the court's recent decisions suggest considerable judicial sympathy for businesses along with a willingness to defy legal precedent. Most observers expect the justices to rule for the employer in Glacier, but a major question mark is how broadly worded the decision will be.  

"From the employer perspective, the broader the scope of the ruling to put the union potentially on the hook for damages, the better," said Altchek of Saul Ewing.

Dirnbach, the labor researcher, believes that an anti-labor decision could have the opposite effect. "It's not going to mean the unions won't go on strike," he said, but the strikes might look different. Instead of stoppages and picket lines, for example, employees might protest while still on the clock, slowing down work or speaking out in other ways.

"The worst thing is if we give up on protesting and striking," he said. "Hopefully the labor movement is more courageous than that."

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• Labor Union
• Strike
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