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Publication Date

1970

Abstract

IN 1938, a few short years after the enactment of the National Labor Relations Act,' and only one year after the constitutionality of the Act had been upheld, 2 the Supreme Court resolved a fundamental question concerning the extent to which the Act protected employees in their exercise of the right to strike. In NLRB v. Mackay Radio & Telegraph Co.," the Supreme Court held that an employer, in order to carry on his business, could lawfully hire permanent replacements for his employees who were engaged in an economic strike, and that the employer was under no obligation to create positions for such re- placed strikers by discharging their replacements at the termination of the strike. In the key passage of the Court's opinion, Justice Roberts stated: Nor was it an unfair labor practice to replace the striking em- ployees with others in an effort to carry on the business. Although § 13 provides "Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike," it does not follow that an employer, guilty of no act de- nounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment in order to create places for them. The assurance by respondent to those who accepted employment during the strike that if they so desired their places might be permanent was not an unfair labor practice nor was it such to reinstate only so many of the strikers as there were vacant places to be filled.

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