The Story of NLRB v. Mackay Radio & Telegraph Co.: The High Cost of Solidarity

In 1938, in NLRB v. Mackay Radio & Telegraph Co., the Supreme Court offered one of its earliest interpretations of the National Labor Relations Act. Although the Court’s holding provided that employers may not discriminate against employees for their union activity when the strike is over and workers are reinstated, dicta in the opinion also provided that under the NLRA employers enjoy an unrestricted right to replace strikers. In the 70 years since the Court’s announcement, scholars remain baffled by the contradictions presented by the “Mackay doctrine”—a rule that forbids employers from discharging legally protected strikers while, at the same time, allows those employers to hire other workers to replace strikers. Such a rule seemingly upsets the neutrality toward the parties the NLRA was intended to embody. But as irreconcilable as these principles seem, the Mackay doctrine failed to attract sustained criticism until the 1960s. To account for this latter day criticism, the authors examine the history of the case, but more significantly, the developments in labor law and industrial relations in the years since Mackay was decided. Their analysis reveals some of the basic problems, tensions, and social understandings that underlie the NLRA. Ultimately, they conclude, Mackay reiterates the abiding need for worker solidarity in collective bargaining. The willingness of individuals to make cause with others, and make personal sacrifices for the common good, not only inform labor relations, but are central to the survival of any democracy