Legal approaches towards strikes in the private sector and public sector have gone through an interesting jurisprudential journey over the last two centuries. From the time when American law did not even recognize a lot of the trade union activities as legal and labelled them as participation in criminal conspiracy (Commonwealth v. Pullis, Mayor’s Court of Philadelphia, 1806) to the time when strikes were seen along the same lines as constitutionally guaranteed civil rights. This piece is going to be a brief overlook of the developments in private sector strikes.

Criminal Sanctions to Economic Justification
From the early days of criminal sanctions the American labour law’s development occurred with tort law actions and the ‘tort of intentional infliction of unjustifiable harm’. The idea of economic justification took control over the perception of labour unions and their activities. Even if the activities undertaken by a labour union was objectively peaceful and non-violent, it can still be argued that it would cause economic grievances for the group of people towards whom these activities were aimed at. A union’s liability in tort therefore, was fixed if it was unable to justify that its own economic interest can balance out the inflicted harm. In the early days of the economic justification rule, the American judiciary’s decisions were always inclined towards the employers and it took a series of notable dissensting opinions from eminent judges like Brandeis and Holmes to turn the tide. One of the more popular pieces of opinions  by Holmes in this regard came in 1896 when he recognised the importance of economic pressure that was created by these unions in order to balance the increasing power of capital. In the year 1920, the American Supreme Court adopted this view too. In the process of doing so Chief Justice Taft talked about ‘economic justification’ as characterized by Professor Gregory:

“Labor unions are recognized. . . as legal when instituted for mutual help and lawfully carrying out their legitimate objects. . . .They were organized out of the necessities of the situation. A single em- ployee was helpless in dealing with an employer. . . .Union was essential to give laborers opportunity to deal on equality with their employer.”

Civil Rights Doctrine

At the advent of the twentieth century, the jurisprudential journey can be traced to join the doctrine of ‘civil rights’ which aided the workers’ rights and economic interests. In the case ‘National Protective Association v. Cumming’, Chief Justice Parker on behalf of the majority of the court declared that the right of a union to sponsor a strike for a closed shop is beyond a doubt a right of their own helm. The surfacing of the ‘civil rights doctrine’ would have rippling effects and significant consequences. The establishment of this doctrine gave the unwavering fundamental civil right to hold back their services if they find that some of the terms or conditions are not agreeable to them. The collective decision of refusing to work, regardless of the purpose of such collective refusal was seen on equal footing as the liberty to quit. The right to strike definitely got a huge boost because of this constitutional guarantee then; the present view is that there does not exist anything such as the absolute right to strike.