Supreme Court attacks right to strike

Earlier this month, the U.S. Supreme Court took aim at our right to strike. In the  

Glacier Northwest v. International Brotherhood of Teamsters, Local Union 174 case, the court ruled 8 to 1 to allow employers to sue a union in state court for property damages resulting from a strike before the NLRB determines if the union is responsible for the damages. 

The case dealt with whether the Washington State IBT local can be sued for ruining the cement in the trucks they stopped driving when the strike began. The Washington Supreme Court dismissed the case because the state civil suit was preempted by the NLRB’s national jurisdiction based on the 1957 ruling in San Diego Building Trades Council v. Garmon. Although the boss knew they would strike and the drivers returned the trucks to the office, the cement hardened and supposedly damaged the trucks. The boss sued the union for damage to the cement they could no longer deliver because all their workers struck. 

While the case was sent back to the state court, it could very well end up back at the Supreme Court, which appears ready to take another shot at the right to strike. 

The potential consequences of this case are huge. An effective strike causes a loss of the boss’s property — that’s the purpose of a strike. As I teach workers in my credible -strike-threats trainings, “if the boss don’t pay a cost, the strike will be lost.” This is the primary determinant of whether the strike is effective. Bosses know that strikes that cost them win.  

Even Associate Justice Ketanji Brown Jackson gets this. She wrote in her lone dissent that “workers are not indentured servants, bound to continue laboring until any planned work stoppage would be as painless as possible for their master. They are employees whose collective and peaceful decision to withhold their labor is protected by the NLRA even if economic injury results.” 

While this ruling has been dismissed as a “near miss,” it is a dangerous attack on our right to strike. It does this, according to SEIU 32BJ labor lawyer Andrew Strom, by “inviting every state court judge to reach their own conclusion about whether strike activity is protected by federal law.”   

The strategy is an old one. Like with the numerous attacks over four decades on Roe v. Wade until that decision was overturned last summer, an issue I recently wrote about on these pages, Glacier Northwest is a backhanded effort to gut the right to strike. It appears to be the kind of test case that right wing corporate lawyers and nonprofit law firms bring in order to gut and overturn existing precedent and increase the power of their funders. 

As Harvard law professor and former Obama NLRB board member Sharon Block put it in SCOTUSblog, “While the basic right to strike remains intact following the court’s decision, Glacier fits the pattern of this court: chipping away at labor rights. Sometimes the justices do it in big chunks and sometimes in smaller ones. But this case, like the others, moves in the same direction.” 

The ruling is a direct challenge to the NLRB’s legal authority as the judge of whether a union failed to take necessary “reasonable precautions” to avoid property damage. The Supreme Court heard the appeal before the NLRB even held its hearings on the issue. 

The effect of this supposedly “limited ruling” is huge. The court is now allowing the boss to file a property damage claim against a union for a legal strike. Property damage such as hardened cement and spoiled food are obvious. We are sure to soon see claims for lost sales or profits when the business comes to halt due to the strike or when scabs do the job poorly and break things.  

The real danger is that by allowing the suit to proceed in state court, bosses are sure to take this as a signal to file civil suits for any strike.  

Knowing that such suits could cause serious damage to our unions, and even bankrupt them, conservative union leadership are certain to use the threat of a lawsuit to stop their workers from striking. They may also use the risk of a suit to weaken strikes by holding them during off-hours to avoid any cost to the boss. With strikes still at historically low levels, the last thing we need is an excuse for our leadership to keep us from using the only power we really have — to disrupt the workplace until we get what we need and want.  

If this starts happening, this ruling will mean“that the workers may be less effective at convincing their employer to make concessions at the bargaining table,” according to labor lawyer Jenny Hunter writing in Ballsandstrike

Since two of the three liberal justices sided with the court’s six conservative justices in this attack, we would be foolish to think judges appointed by Democrats will protect our rights as workers. As Teamsters President Sean O’Brien said the day the ruling was released, “the American people cannot rely on their government or their courts to protect them.” 

Liberal Associate Justices Elena Kagan and Sonia Sotomayor betrayed us by signing onto Associate Justice Amy Coney Barrett's majority ruling that “All agree that the NLRA protects the right to strike but that this right is not absolute.” We should be very concerned about this bipartisan threat especially since President Biden and the Democratic-controlled Congress suppressed the railroad strike last fall. 

Questioning whether the strike is a protected right of workers is the opening salvo of a new bipartisan attack on the 1935 NLRA. 

The ruling confirms the long-lasting truth in the workers movement that “There is no illegal strike, just an unsuccessful one.”  While we still have the right to strike, despite all of the limits that already exist, it is undeniable that all strikes, effective or not, are under attack. The only way to preserve the right to strike is to use it effectively.