September 20, 2023

Experts debate the extent to which the U.S. Supreme Court ruling is chilling labor strikes

By John Kruzel

WASHINGTON (Reuters) – The US Supreme Court has issued the latest in a series of rulings undermining organized labor, with some legal experts predicting the decision will make strike unions more vulnerable to litigation, while others see a more modest impact.

An 8-1 ruling on Thursday, penned by conservative judge Amy Coney Barrett, made it easier for businesses to file strikes that cause certain cases of property damage. The case involved a strike by the union representing truck drivers at a concrete company owned by Japan-based Taiheiyo Cement Corp in Washington state.

Some pundits viewed the ruling as consistent with the court’s history of conservative majority in recent years of restricting union and workers’ rights.

Cornell Law School labor law professor Angela Cornell called it “another decision that undermines unions’ ability to function.”

“Weakening the right to strike by making it more risky to exercise it means it will reduce the only influence unions have when negotiating with companies. This is of course a major bias against corporate interests and against the collective interests of workers said Cornell, who joined a brief union support in the matter.

“The decision is part of a systematic Supreme Court project to limit workers’ collective rights in the name of industrial peace while expanding employers’ arms of lockouts and permanent substitutions in the name of private property rights and free enterprise.” added Indiana University Maurer School. of Law employment and labor law professor Kenneth Dau-Schmidt, who also joined a brief support of the union.

But according to Benjamin Sachs, professor of labor and industry at Harvard Law School, it “will not do much harm to the right to strike if lower courts faithfully apply the reasoning outlined in Barrett’s decision.”

“The court made a very narrow ruling that appears to be limited to the specific facts of a case regarding the specific nature of concrete mixing,” Sachs said.

The court ruled in favor of Glacier Northwest Inc, which sued a local affiliate of the International Brotherhood of Teamsters after a work stoppage forced the company to throw away undelivered concrete. The judges ruled that the company’s claims were not precluded by a statute called the National Labor Relations Act on the grounds that the union had failed to take “reasonable precautions” to prevent foreseeable and imminent damage to the property of the employer as a result of the strike.


The ruling comes at a time of increasing strikes by U.S. labor unions. According to data from the US Bureau of Labor Statistics, the number of US workers participating in strikes and similar activities increased by almost 50% in 2022 compared to the previous year.

Cornell said the decision “could curb the recent uptick in class action by workers” by putting unions at greater risk of litigation if they go on strike.

Dan Altchek, an attorney with the Philadelphia-based firm Saul Ewing who represents employers in employment cases, said the ruling gives employers “a bit of a roadmap” to reduce the likelihood of strike-related property damage lawsuits being dismissed.

“If and when such lawsuits survive a union’s motion to dismiss, the litigation risk for the union as a result of the strike is greatly increased,” Altchek added.

Some experts pointed out that the ruling largely upheld the existing legal scaffolding for deciding these types of labor preemption cases.

“The court’s analysis may have lowered the threshold for union protection somewhat when considering the applicability or scope of the ‘take reasonable precautions’ test,” said James Brudney, an employment law professor at Fordham University Law School.

Brudney called this aspect of the ruling a “relatively minor development” compared to the court’s broader decision to leave intact the main framework for analyzing labor disputes of this nature.

The Supreme Court, with its Conservative majority of 6 to 3, has dealt with setbacks to organized labor in key cases in recent years.

In 2021, it scrapped a California farm ordinance designed to help unions organize workers. In 2018, it ruled that non-members cannot be forced, as is the case in certain states, to pay fees to unions representing government employees such as police and teachers who enter into collective bargaining agreements with employers.

Brudney said Thursday’s ruling was “not comparable to that broader trendline” of decisions weakening unions.

Anne Marie Lofaso, a professor at the West Virginia University College of Law, said: “The case fits the judicial trend to weaken unions by weakening what counts as protected coordinated activity.”

“This was the narrowest analysis the court could have made to allow the employer to win,” Lofaso added.

(Reporting by John Kruzel in Washington; editing by Will Dunham)

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