Strike-Out

Abstract

The article provides a structured efficiency-oriented response to a highly important question which has been neglected by scholars for decades: should employees and their labor union, involved in a strike against a particular employer, be liable for ensuing third-party harms? Assume, for example, that the Albuquerque firefighters stage a strike for a wage increase. Just then, a fire breaks out and destroys an industrial laundry facility and a surreptitious underground workshop, causing temporary evacuation of adjacent businesses. Should the proprietors have a cause of action against the strikers for property damage and economic loss?

The article puts forward a novel framework for assessing third-party claims, incorporating two fundamental principles. Under the first, which I call “the principle of deference,” tort law should not normally undermine a specific legal regime governing the allocation of power in the concrete case, particularly if the applicable regime has been cautiously crafted by the legislative and executive branches of government. Under the second and more traditional tort principle of “reasonableness” or “reasonable care,” strikers like other potential injurers must take cost-effective precautions to avoid foreseeable harm to others. I argue that in the particular context in hand, concurrent application of the two principles entails two concessions. On the one hand, the principle of reasonableness should not be enforced to the full extent to secure deference. On the other hand, an exception to the principle of deference must be recognized to prevent considerable deviation from the principle of reasonableness.

Keywords: tort law, labor law, strikes, law and economics, collective bargaining

JEL Classification: K00, K13, K31