How a 2017 strike could end the new era of worker activism

How a 2017 strike could end the new era of worker activism

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  • January 13, 2023
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Over 200,000 Americans went on strike in 2022, making it the hottest year for walkouts since 2005. But a case heard in the US Supreme Court this week could make the right to strike, a right enshrined in labor law for nearly a century, much riskier for workers.

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

But a High Court decision could go beyond whether the CalPortland workers who joined the strike and were represented by the Teamsters are liable for the company’s financial losses. If the court rules in Glacier’s favour, the ruling would give employers the green light to sue their employees over workers’ conspicuous, potentially chilling willingness to challenge management over pay, safety and many other issues.

“It’s like allowing employers to tax the right to strike,” Sharon Block, executive director of the Labor & Worklife Program at Harvard Law School, told CBS MoneyWatch.

UC workers reach agreement to end strike 02:38

Right to strike largely protected

“Currently, the general rule is that an employer cannot claim damages for a strike, except in certain circumstances,” said Dan Altchek, management-side employment attorney at Saul Ewing.

These limited circumstances include willful destruction of property and violence. For example, 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-in at their employer’s plant.

The strike at Glacier Northwest appears to be hundreds of others. On August 11, 2017, construction workers, frustrated by the pace of their contract negotiations, left their jobs. When 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 turned the drums on the trucks. Non-union workers at the company scrambled to empty the barrels and salvage the trucks, which were not damaged. The strike ended a week later.

CalPortland claims that far from a standard strike, the workers’ action was “deliberately aimed at destruction [the] employer’s property” and that the company should seek compensation from the union representing the workers, as it could in the event of vandalism.

“The intentional destruction of an employer’s property in the course of a labor dispute is not protected,” former US Attorney General Noel Francisco told judges Tuesday when arguing for CalPortland. “Federal security forces can’t leave their post in the middle of a terrorist threat… A ferry crew can’t pull their boat out in the middle of the river and abandon ship.” The concrete workers shouldn’t have gone out either, Francisco claimed.

The problem with this line of reasoning is that the term ‘property damage’ could include any damage that occurs during a strike. As Harvard’s Block explained, this means that Starbucks baristas who go on strike could suddenly face the prospect of being sued for spoiled milk or stale coffee during the break. And supermarkets could sue striking delicatessen workers over cold cuts that expire before the sell-by date.

“You say, ‘You as an employee must continue an employment obligation with me until all my profits are secure.’ That’s what you see argued,” Judge Sonia Sotomayor said when questioning Francisco.

Unions could make a comeback after decades of decline 02:23

A risky venture

Organizing a strike is a challenging undertaking, even without the threat of such lawsuits.

“Even now, if you go on strike, say I’m willing to take the risk of not getting paid, giving up my paycheck to try and get a better deal. But saying I’m going to give up my paycheck and I’m willing to risk a massive payout to these companies? You can imagine a lot of workers don’t want to take that risk,” Block told CBS MoneyWatch.

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

Many workers who are not affiliated with a formal union are becoming involved at work: A third of work stoppages in 2021 were led by non-union workers, according to a Cornell University study. And allowing companies to turn to state courts in “property destruction” cases means states not only interpret federal labor law, but also define what counts as “property,” Block said.

Ownership “isn’t just about your physical structure — it’s defined by state laws,” she explained.

The Teamsters’ attorney made a similar observation in his argument Tuesday. “Property can be anything,” he told the Supreme Court. “Property could be goodwill. Property could be money. Property could be intangibles.”

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