$800,000 Verdict Taken Away from Employer Faced with a Sympathy Strike

Volume 3, Issue 1
January 15, 2004

The United States Court of Appeals for the Ninth Circuit clarified what constitutes a sympathy strike and how unions may waive their rights to engage in such strikes in Standard Concrete Products, Inc. v. General Truck Drivers, Office, Food & Warehouse Union, Local 952, Nos. 01-57256 & 01-57257 (9th Cir. Dec. 18, 2003).

Standard Concrete has facilities in Orange and Riverside Counties. Local 952 represented the employees at Standard Concrete's Corona facility in Riverside as well as its employees in the Orange County facilities. In January 2000, the Corona facility's bargaining unit members went on strike. On the second day of the strike, the Corona employees extended their picket lines to the Orange County facilities and members of the Orange County bargaining unit honored the picket lines, refusing to work.

Standard Concrete sued the Union in federal court, arguing that the Orange County bargaining unit violated its Collective Bargaining Agreement ("CBA") by honoring the picket lines. The Orange County CBA provided that "neither the Union nor its members will cause or take part in any strike". The federal trial court agreed with Standard Concrete and awarded damages against the union in the amount of $802,327.00 plus costs. The Ninth Circuit was called upon to determine whether the Orange County CBA barred its members from engaging in a sympathy strike and whether the employees, represented by the same union, actually engaged in a sympathy strike.

The Court determined that when the Orange County bargaining unit members refused to cross the picket lines of the Corona bargaining unit, they engaged in a sympathy strike protected by Section 7 of the National Labor Relations Act. The Court explained that in a sympathy strike, "members of one bargaining unit refuse to cross a picket line that is established by another bargaining unit that has a primary dispute with a common employer." The Court held that Section 7 does not distinguish between sympathy strikers who are represented by the same union that represented the primary strikers and sympathy strikers who are represented by a different union that represents the primary strikers. As such, the Ninth Circuit clarified that sympathy strikes are not limited to sister unions, and can instead occur even amongst different bargaining units of the same union.

The Court further found that in order to waive the rights of bargaining unit members to engage in sympathy strikes, the waiver must be "clear and express". The Court held that general no-strike clauses which do not specify whether sympathy strikes are included or excluded do not constitute a clear and unmistakable waiver of such strikes. As such, the Court reversed the district court's award of damages against the union and upheld the conduct of the Orange County bargaining unit employees.

This case serves as a clarification of the scope of sympathy strikes but more importantly a reminder that no-strike clauses in Collective Bargaining Agreements must specifically call out sympathy strikes in order to constitute an effective waiver of the bargaining unit members' Section 7 rights to support the labor disputes of other union members.

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