NLRB V. Mackay Radio & Telegraph Co. - Subsequent Legal Developments

Subsequent Legal Developments

The Supreme Court has extended the Mackay Radio ruling repeatedly since 1938, and the Congress enacted legislation addressing the issue of strikebreakers twice in the two decades after the decision.

In 1945, the Supreme Court issued its first decision on strikebreakers since Mackay Radio. In Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), the Court held that an employer committed a ULP when it hired strikebreakers because the employer had treated employees differently from how it would have treated them had they not been engaged in union solicitation.

Two years later, Congress passed the Taft-Hartley Act, which significantly affected the use of strikebreakers. One of the innovations of the Taft-Hartley Act provided a mechanism for workers to vote out ("decertify") a union. Section 9(e)(2) of the Taft-Hartley Act created decertification elections, which would permit workers to take a vote on whether they wished to retain existing union representation. Section 9(e)(2) had the intended side-effect of disenfranchising striking workers. Employers quickly exploited this loophole by hiring permanent replacement workers and then petitioning for a decertification election. The practice became so common that President Dwight Eisenhower denounced it several times.

As the use of strikebreakers increased, the Supreme Court was forced to address several issues arising from the practice. One key issue was motive: Did it matter if the use of strikebreakers was motivated by anti-union animus? In Radio Officers' Union v. NLRB, 347 U.S. 17 (1954), the Supreme Court held that proof of motive was indeed required. However, no proof of motive was needed where employer conduct "inherently" encouraged or discouraged union membership. A second issue involved use of the whipsaw strike. As unionization in an industry spread, unions encouraged employers to bargain as a group. To discourage employers from breaking away from the group, unions developed the whipsaw strike—-in which the union would strike one employer at a time, one after another. Employer groups would counter the whipsaw strike by locking out all workers at all employers belonging to the group, and using strikebreakers to provide temporary or permanent replacements. The question before the Court was whether the lockout was an unfair labor practice. In NLRB v. Truck Drivers Local 449 ("Buffalo Linen Supply Co."), 353 U.S. 87 (1957), the Court held that such a lockout was not a ULP.

In 1959, Congress addressed the inequities created by Section 9(e)(2) of the Taft-Hartley Act. The Labor Management Reporting and Disclosure Act (also known as the Landrum-Griffin Act) amended the Taft-Hartley Act to permit striking workers to vote in a union decertification election held within one calendar year after the commencement of a strike.

The Supreme Court revisited the Mackay Radio ruling repeatedly from the early 1960s into the late 1980s. Many of the Court's decisions addressed the conditions under which an employer exhibited anti-union animus. In NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963), the Court held that a grant of superseniority to strikebreakers constituted anti-union animus and was a ULP. Building on its ruling in Buffalo Linen Supply Co., the Supreme Court held in American Ship Building v. NLRB, 380 U.S. 300 (1965) that an employer may lock out its employees without violating the NLRA if a bargaining impasse has been reached and the lockout is for the purpose of applying economic pressure to support the employer’s bargaining position. However, the employer cannot hire permanent replacements, only temporary ones. The high court further extended the "Mackay doctrine" in NLRB v. Brown Food Stores, 380 U.S. 278 (1965), holding that an employer could lock out its employees in advance of a whipsaw strike so long as the employer only utilized temporary replacements and locked out all workers (not just those who supported the union). These cases did not address the partial lockout, however. The Court addressed that issue in 1967. In NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), the Supreme Court held that an employer could avoid being charged with a ULP if it could provide a legitimate and substantial business justification for treating union workers differently than its other employees. However, even if the employer could offer such a justification, the NLRB could still attempt to show anti-union animus at trial.

Many of the Supreme Court's post-Mackay decisions involved balancing the rights of strikebreakers and those who crossed the picket line against the rights of striking workers. This was a logical outcome of the Mackay Radio decision, for the Mackay Court had asserted that strikers remained employees. But the Mackay Court never addressed the legal status of strikebreakers, which it now began to do. In Belknap, Inc. v. Hale, 463 U.S. 491 (1983), the Court held that strikebreakers who were offered permanent employment and then replaced to make room for returning strikers could seek relief in state court for breach of contract and misrepresentation. The Court also began to address the status of union members who crossed picket lines. The Court upheld a union's ability to fine members who crossed picket lines and held that replaced strikers are entitled to reinstatement if the employer expands its workforce after a strike. However, the Supreme Court held that a union may not compel an employer to fire union members who cross a picket line. And in NLRB v. Granite State Joint Board, 409 U.S. 213 (1972), the Supreme Court held that a union member who crosses a picket line can avoid union sanctions by simply resigning from the union. Upholding the right to freedom of association, the Court also held that unions may not constitutionally prohibit members from resigning in order to avoid sanctions for crossing picket lines. The right to work, the Court said, even protected an employer's right to entice striking workers back to work with promises of promotions or better pay.

In 1991, the Supreme Court issued the most recent (as of early 2008) of its post-Mackay decisions. That year, the Court held that permanent replacements could not automatically be presumed to oppose an incumbent union. Therefore, use of strikebreakers was not automatically a presumption of anti-union animus.

In 1994, an effort was made in Congress to repeal Mackay Radio. Members of the United Paperworkers' International Union conducted a nationwide strike against International Paper, one of the largest paper manufacturers in the world, in 1987. International Paper utilized permanent replacements as strikebreakers. The labor dispute was particularly bitter at the International Paper plant in the small town of Androscoggin, Maine. The union was unsuccessful in winning a new contract, and an election held a year later decertified the union. The Maine AFL-CIO asked one of Maine's representatives in the House of Representatives to introduce a bill banning permanent replacements. The bill, known as the "Workplace Fairness Act," easily passed the House. On July 13, 1994, the bill was on the verge of passage in the Senate when it was blocked by a Republican-led filibuster.

Another effort to mitigate the effects of Mackay Radio occurred a year later. On March 8, 1995, President Bill Clinton issued Executive Order 12954, which barred the federal government from contracting with employers who permanently replaced striking workers. The United States Chamber of Commerce filed suit in federal court to have the executive order overturned. In Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996), the U.S. Court of Appeals for the D.C. Circuit held that the NLRA preempted the executive order, and ordered that Executive Order 12954 no longer be enforced.

Continuing legal uncertainty over the implications of Mackay Radio continue. This has affected decisions of the NLRB in particular. For example, in 1997, the National Labor Relations Board held in Target Rock, 324 NLRB 373 (1997), enf'd. 172 F.3d 921 (D.C. Cir. 1998), that advising replacement employees of their at-will employment status implied that the strikebreakers were not permanent replacements. But the Board later overruled Target Rock in 2007 in Jones Plastic & Engineering, 351 NLRB No. 11.