NLRB v. Mackay Radio & Telegraph Co.

Supreme Court of the United States · 1938 · Labor Law

Labor LawStrikesUnfair Labor PracticesReinstatementNLRAemployee statuscurrent labor disputeeconomic strike

Facts

Respondent's San Francisco point-to-point operators struck after negotiations over wages and working conditions proved unsatisfactory. To maintain service, respondent brought in other workers and promised some of them they could remain permanently if they wished. When the strike failed and strikers sought to return, respondent reinstated most of them immediately, but five men active in union affairs were required to apply for reinstatement and were not restored, even though six other similarly listed strikers were taken back. The Board found that respondent excluded the five because of their union activity.

Issue

Whether strikers who stop work in connection with a current labor dispute remain employees protected by the NLRA, and whether an employer that has hired replacements may nevertheless violate the Act by discriminating against certain strikers in reinstatement because of union activity. The case also presented whether the Board could order reinstatement and back pay without violating the Constitution.

Rule

Employees who strike as a consequence of or in connection with a current labor dispute remain employees under the Act for its remedial purposes unless they have obtained other regular and substantially equivalent employment. An employer that has committed no unfair labor practice may continue operations by hiring others to fill strikers' places and need not discharge those replacements when strikers seek to return, but the employer may not discriminate in reinstatement on the basis of union activity because such discrimination violates the Act.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Detroit, Harbor Line Dispatch Services and a union committee had been bargaining for weeks over wages and shift assignments. After talks stalled, several dispatchers stopped work; none had yet taken other regular jobs, and two days later the company argued they were no longer employees because the company had done nothing unlawful before the walkout.

Under the governing rule, are the dispatchers still employees protected by the Act when they seek statutory remedies?

Explanation. The majority held that a strike arising out of ongoing negotiations over wages or working conditions is connected with a current labor dispute, even if the employer committed no prior unfair labor practice. Under the Act, such strikers remain employees for remedial purposes unless they have obtained other regular and substantially equivalent employment.