NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), is a United States labor law case of the Supreme Court of the United States which held that workers who strike remain employees for the purposes of the National Labor Relations Act (NLRA).. The Court granted the relief sought by the National Labor Relations Board, which sought to have the workers reinstated by the employer. However, the decision is much better known today for its obiter dictaBrisbin, A Strike Like No Other Strike: Law and Resistance During the Pittston Coal Strike of 1989-1990, 2002.Turner, "Restoring Balance to Collective Bargaining: Prohibiting Discrimination Against Economic Strikers," West Virginia Law Review, Spring 1994.Estreicher, "Strikers and Replacements," Labor Lawyer, 1987. in which the Court said that an employer may hire strikebreakers and is not bound to discharge any of them if or when the strike ends.Mackay, 304 U.S. at 345-346.
The Mackay doctrine, as the striker replacement portion of the ruling is known, is one of the most significant Supreme Court rulings in American labor law,Getman and Kohler, "The Story of 'NLRB v. Mackay Radio & Telegraph Co.': The High Cost of Solidarity," in Labor Law Stories, 2005.Atleson, Values and Assumptions in American Labor Law, 1983.Matheny and Crain, "Disloyal Workers and the 'Un-American' Labor Law," North Carolina Law Review, 2004.Pope, "How American Workers Lost the Right to Strike, and Other Tales," Michigan Law Review, 2004. and has defined collective bargaining in the United States since its publication. "Mackay Radio was more than a decision that provided an instrumental method for a firm to replace economic strikers and to resist their return to employment after a strike. It was also a decision that established important practices that constituted the conduct of union-management bargaining during the post-New Deal Era."Brisbin, A Strike Like No Other Strike: Law and Resistance During the Pittston Coal Strike of 1989-1990, 2002, p. 66.
The ruling is also highly controversial, even more than 80 years later. It is strongly and uniformly condemned by labor unions, and resolutely defended by employers. Among academics in the political sciences and other related disciplines, "the doctrine continues to provoke the notice and the nearly universal condemnation of scholars."Getman and Kohler, "The Story of 'NLRB v. Mackay Radio & Telegraph Co.': The High Cost of Solidarity," in Labor Law Stories, 2005, p. 13.
Background
Company history The Mackay Radio & Telegraph Company was founded in 1884 by John William Mackay (a wealthy silver mine owner) and James Gordon Bennett as the Commercial Cable Company with the goal of providing transatlantic telegraph service. Mackay next incorporated the Postal Telegraph Company to expand the system across the continental United States. In 1901, Mackay formed the Commercial Pacific Cable Company to provide cable telegraphic service across the Pacific Ocean. Although Mackay died in 1902, his son, Clarence Mackay, continued to head the company. In 1925, Clarence Mackay founded Mackay Radio, and added a radio network to the telegraph business. In 1928, the Mackay Radio & Telegraph Co. merged with its two cable siblings and All America Cables to form the American Cable & Radio Corporation. The majority shareholder in the new company was the International Telephone & Telegraph Co."Clarence Mackay Dies At Home Here," New York Times, November 14, 1938; Coe, Wireless Radio: A Brief History, 1996; Sobel, ITT: The Management of Opportunity 1982.
Legislative background On June 16, 1933, President Franklin D. Roosevelt signed the National Industrial Recovery Act into law. Section 7(a) of the NIRA guaranteed the right of labor unions to organize, and a wave of unionization swept the country. To administer Section 7(a), the National Labor Board (NLB) was created on August 5, 1933. The three-member NLB quickly adopted two sets of rules to deal with strikes and replacement workers. Whenever a strike occurred because of an employer's violation of Section 7(a), the NLB ordered the reinstatement of striking workers. But if the workers struck for economic reasons (for example, to win a wage increase), then the NLB refused to order the reinstatement of the strikers. Although at least one member of the Board strongly disagreed with the distinction between the two kinds of strikes and the legality of strikebreakers under Section 7(a), striker replacement became accepted federal labor policy.Logan, "The Striker Replacement Doctrine and State Intervention in Labor Relations, 1933-1938," in Industrial Relations Research Association Series: Proceeding of Fiftieth Annual Meeting, 1998.
In 1934, at the behest of the American Federation of Labor, Senator Robert F. Wagner began work on a bill that would have banned the replacement of striking workers. The bill was strongly opposed by the National Association of Manufacturers and other employer groups, which argued that the bill would permanently deprive replacement workers of the right to join a union, participate in a union, or become a full-time employee. Many of Sen. Wagner's legal and labor advisors also made the same arguments. The National Urban League also opposed the bill as since many AFL unions discriminated against African American workers, who were often employed as strikebreakers. The League felt the bill would be racially discriminatory and hinder the League's efforts to open union membership to all.
Wagner's bill never made it out of committee. When Wagner introduced a new version of the bill in 1935, the legislation omitted all reference to striker replacement. Committee staff reports noted that the bill conformed to existing Lochner era law and practice, which gave striking workers protections as employees but permitted striker replacement. The issue of striker replacement received almost no debate in the House or the Senate. The new bill was enacted, and on July 5, 1935, President Roosevelt signed the National Labor Relations Act (NLRA) into law.
Section 2(3) of the National Labor Relations Act (29 U.S.C. §§ 151-169) states:
Strike Labor unions began organizing in the broadcasting industry in the early 1930s. Among the most active of the unions was the American Radio Telegraphists Association (ARTA), later part of the CWA.Tower, "Labor Relations in the Broadcasting Industry," Law and Contemporary Problems, Winter 1958. ARTA would change its name to the American Communications Association and join the Congress of Industrial Organizations. In 1950, the union would be involved in another landmark Supreme Court case, American Communications Association v. Douds,. which upheld the Taft-Hartley Act's requirement that officers of labor unions sign affidavits pledging they were not members or supporters of the Communist Party. In 1966, the ACA merged with the Teamsters."Joseph Selly, 85, Dies," New York Times, March 8, 1991; Rabinowitz, Unrepentant Leftist: A Lawyer's Memoir, 1996. ARTA organized radio operators at Mackay Radio & Telegraph in early 1934. There were two units, one for "point-to-point" operators on land and one for operators at sea. The point-to-point operators were organized into three divisions, covering the three major employers (Mackay Radio, Globe Wireless, and RCA). In June 1935, ARTA members in the land and marine divisions at Mackay Radio decided to coordinate their bargaining so that both groups of workers might win a contract. The talks stalled after Mackay Radio threatened to declare bankruptcy, but the union pressed ahead with its demands in September. ARTA asked for recognition of the union, a written contract, the 48-hour week, and a 14.5 percent wage increase. The ARTA members at Mackay Radio held a vote and authorized a strike if no contract was forthcoming by September 23, 1935. No agreement was reached, and the strike began at 12:01 a.m. on October 5, 1935. In San Francisco, Mackay's primary transmission office on the West Coast, 60 of the 62 operators walked off the job. But the strike was far less successful elsewhere. Workers in Seattle and New York City walked out for only a few hours. In Washington, New Orleans, Chicago, and West Palm Beach, workers either did not strike or walked out in such few numbers as to make the strike ineffective. The company flew in 11 replacement workers from other offices to keep the San Francisco office functioning."Radio Men Call Strike," New York Times, October 5, 1935; "Radio Operators Begin Walkout," New York Times, October 6, 1935; "Reports On Radio Strike," New York Times, October 8, 1935.
By the early morning of October 8, 1935, it was apparent the strike had failed. At a meeting between the union and a company representative early that day, the company announced that all but 11 men could return to work. The company representative handed the union a list containing the names of the 11 men, and said the 11 could apply for work. The men would be rehired, however, only if positions opened up. Although the list contained the names of some of the strongest union supporters, the union members voted to return to work on the company's terms. The strike ended at 6:00 a.m. that morning. The 11 men applied for work, and seven were rehired two days later. The four operators not rehired were the most senior and best paid men, as well as the strongest union supporters.
ARTA immediately filed a complaint with the NLRB. The NLRB issued its own complaintA worker's or union's complaint does not automatically initiate NLRB action. Under the procedures of the Board, a Board agent will investigate the issue. If the agent finds that a prima facie case can be made for a violation of the Act, the NLRB will issue its own complaint. This initiates action by the Board or one of its Regional Offices, which will then hear testimony for both sides and issue a ruling. See: National Labor Relations Board, ULP Casehandling Manual, 2003. Because of a lack of legal staff and established agency procedures in 1935, the Board initially required its own General Counsel, Charles H. Fahy, to review and approve complaints before they were issued by Regional Offices. This requirement was not relaxed until January 1936. See: Getman and Kohler, "The Story of 'NLRB v. Mackay Radio & Telegraph Co.': The High Cost of Solidarity," in Labor Law Stories, 2005.Irons, "The New Deal Lawyers," 1982. on November 9, 1935, and a hearing was conducted from December 2 to December 20. The Board transferred authority to issue a ruling from the Regional Office to the national Board on December 19. On February 20, 1936, the NLRB issued its decision in Mackay Radio & Telegraph Co. The Board specifically avoided ruling on whether the replacement workers were strikebreakers and what right they had to their jobs. Instead, the Board focused almost exclusively on the fact that the employer had discriminated against the four men based on their protected union activities.Mackay Radio & Telegraph Co., 1 NLRB 201, 216.
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