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NLRB v. Mackay Radio & Tel. Co. - 304 U.S. 333, 58 S. Ct. 904 (1938)


Although § 13 of the National Labor Relations Act provides that nothing in the 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 denounced 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.


Following the failure of negotiations for an agreement regarding terms and conditions of employment, employees of respondent Mackay Radio & Telegraph Company ("MacKay") went on a strike. MacKay brought employees from its offices in other cities to take the places of the strikers. Subsequently, all but five of those who had been on strike were re-hired by Mackay. The union representing Mackay's workers initiated a proceeding before petitioner National Labor Relations Board ("NLRB") charging that Mackay's non-employment of the five workers was discrimination on account of union activities and that it was guilty of unfair labor practices. After a hearing, the NLRB ordered MacKay to cease and desist from discharging or threatening to discharge, any of its employees because of their membership in the union or on account of union activities; to refrain from interfering with, restraining or coercing its employees in respect of self-organization and collective bargaining; and required MacKay to reinstate to their former positions, with back pay, the five workers and to post notices to the effect that members of the union would not be discriminated against. The NLRB then sought enforcement of its order, but the United States Court of Appeals for the Ninth Circuit denied enforcement and held that MacKay had not engaged in unfair labor practices. The NLRB was granted a writ of certiorari.


Did McKay engage in unfair labor practices when it refused to re-hire the five works based upon their union activities?




The Supreme Court of the United States reversed the appellate court's judgment and remanded the matter for further proceedings. The Court ruled, inter alia, that the strike was a consequence of, or in connection with, a "labor dispute" as defined in § 2 (9) of the National Labor Relations Act. Because their work stopped as a consequence of, or in connection with, a current labor dispute, the strikers remained "employees" of Mackay for the purposes of the Act, and were protected against unfair labor practices. The court further ruled that discrimination in reinstating employees who had been on strike by excluding certain of them for the sole reason that they had been active in the union was an unfair labor practice prohibited by the Act.

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