In oth­er words, the NLRB will inves­ti­gate when an employ­er hires scabs — and they bet­ter have a good case. Since most strikes these days are defen­sive — push­ing back against employ­ers’ attempts to gut work rules, slash pay and ben­e­fits and bust the union — this is a big deal.

For much of the last four decades, the NLRB has sim­ply tak­en a boss’s word that the per­ma­nent replace­ment of strik­ing work­ers was nec­es­sary to con­tin­ue her busi­ness. Now, the NLRB has declared that it will return to an ear­li­er, Supreme Court-approved stan­dard in which employ­ers’ rights to per­ma­nent­ly replace strik­ing work­ers may be ​“whol­ly impeached by the show­ing of an intent to encroach upon pro­tect­ed rights.”

In a new case, Amer­i­can Bap­tist Homes, the NLRB attempts to strike a bal­ance between work­ers’ statu­to­ry right to strike and pro­tec­tion against employ­er retal­i­a­tion for union activ­i­ty and a boss’s Supreme Court-grant­ed ​“right” to hire per­ma­nent replace­ment work­ers ​“to pro­tect and con­tin­ue his busi­ness.” Thank­ful­ly in this case, the excep­tion­al­ly arro­gant and stu­pid Exec­u­tive Direc­tor of the employ­er in this case and her coun­sel went on the record that their use of per­ma­nent replace­ments was meant to ​“pun­ish the strik­ers and the Union” and to dis­cour­age future strikes, as Ben­jamin Sachs has detailed .

Work­ers sim­ply do not have a mean­ing­ful right to strike if they do not have a right to return to the job when the strike is over. But, thanks to the judi­cial gut­ting of labor rights, going on strike is a high stakes propo­si­tion for Amer­i­can work­ers. Not only do strik­ing work­ers lose out on pay and ben­e­fits dur­ing the strike, but they run the risk of los­ing their jobs entire­ly. So, while work stop­pages are on the rise rel­a­tive to the last few years, they are at his­tor­i­cal­ly low lev­els com­pared to the post-war era when wages actu­al­ly rose with cor­po­rate profits.

With the deci­sive vic­to­ry for union mem­bers at Ver­i­zon , 2016 is already on pace to be the sec­ond year in a row where record­ed strike activ­i­ty has increased over the pre­vi­ous half-decade. Now, a new deci­sion from the Nation­al Labor Rela­tions Board (NLRB) could restore legal job pro­tec­tions for strik­ing work­ers, mak­ing work­place job actions a more com­mon — and more pow­er­ful — union strategy.

“…to inter­fere with or impede or dimin­ish in any way the right to strike.”

A forth­com­ing book by labor law schol­ar Julius Get­man, The Supreme Court on Unions: Why Labor Law is Fail­ing Amer­i­can Work­ers, explores in depth the ​“judi­cial arro­gance” of the court in sub­sti­tut­ing their own ide­ol­o­gy and facts when shap­ing the labor law régime. It is par­tic­u­lar­ly well timed as we look for­ward to a pro­found change in the Court in the wake of Jus­tice Antonin Scalia’s death (although Get­man clear­ly did not antic­i­pate Scalia’s time­ly pass­ing when he wrote the book).

One aspect that stands out in Getman’s book, to this writer at least, is the shak­i­ness of the legal prece­dent that allows employ­ers to per­ma­nent­ly replace strik­ing work­ers. It begs for a cam­paign of judi­cial activism to repeal it.

This legal vul­ner­a­bil­i­ty of strik­ers was estab­lished by a 1938 Supreme Court deci­sion, NLRB vs. Mack­ay Radio. It was a poor­ly decid­ed and lit­tle-revis­it­ed case upon which the entire anti-union play­book depends. Get­man shines a wel­come spot­light on the case, and inspires the con­clu­sion that the so-called ​“Mack­ay Doc­trine” is over­due for a sus­tained cam­paign of judi­cial chal­lenge from unions and their allies.

In the orig­i­nal case, NLRB v. Mack­ay Radio & Tele­graph Co., the union’s strike last­ed all of one week­end. The employ­er con­tin­ued oper­at­ing by trans­fer­ring work­ers from its oth­er facil­i­ties, and when sup­port for the union’s goals failed to mate­ri­al­ize, the lead­ers called off the strike. When the strik­ers returned to work on Mon­day, four of the lead­ers were sin­gled out and denied reinstatement.

The NLRB quick­ly ruled that the employer’s actions were clear vio­la­tions of the law and went to court to order the employ­er to rein­state the four fired strik­ers, with back pay. The 9th Cir­cuit Court refused to enforce the NLRB’s order, as this was gen­er­al­ly a peri­od when many jurists con­sid­ered the labor act, in part or in whole, to be uncon­sti­tu­tion­al. That’s how the case got to the Supreme Court.

Iron­i­cal­ly, the Mack­ay deci­sion was hailed at the time as a vic­to­ry for labor. It was yet anoth­er deci­sion that cement­ed the con­sti­tu­tion­al­i­ty of labor law, but the Court also found for the union and the NLRB.

The labor rela­tions act, after all, was meant to pro­tect work­ers who engage in union activ­i­ty from ​“dis­crim­i­na­tion in regard to hire or tenure of employ­ment or any term or con­di­tion of employ­ment,” and these four work­ers were sin­gled out for their strike activ­i­ty and told that they no longer had jobs.

Of course, Mack­ay had no time to hire per­ma­nent replace­ments in a weekend.

The issue was insert­ed by Jus­tice Owen Roberts as an off­hand com­ment, which I’ll quote in full because it bears scrutiny:

Although Sec­tion 13 of the act, pro­vides, ​‘Noth­ing in the Act should be inter­pret­ed 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.

In oth­er words, the employ­er in Mack­ay broke the law because it dis­crim­i­nat­ed against the strike lead­ers by sin­gling them out and fir­ing them, but if the employ­er had found a non-dis­crim­i­na­to­ry way to dis­crim­i­nate against strik­ers (like, say, hir­ing scabs to replace them in the order of reverse senior­i­ty) then that would be hunky dory.

“…the right to pro­tect and con­tin­ue his business…”

In the four decades that fol­lowed Mack­ay, very few employ­ers took the lib­er­ty to per­ma­nent­ly replace strik­ing work­ers, as it gen­er­al­ly fell out­side what was con­sid­ered social­ly accept­able behav­ior by employ­ers in the post-war era.

Which isn’t to say that some employ­ers didn’t try to push the enve­lope in their union-bust­ing attempts. Most judi­cial revis­it­ing of Mack­ay comes from cas­es where the Courts reject­ed employ­er attempts to go further.

For instance, in a 1963 case the Supreme Court reject­ed an employer’s attempt to grant replace­ments a ​“super senior­i­ty” for their ser­vice as scabs by rul­ing that it was not ​“prop­er under Mack­ay.” It was this sort of right-wing judi­cial activism that pushed back on union rights and served to give a bad foot­note the appear­ance of set­tled legal doc­trine. But the court has nev­er revis­it­ed the facts or log­ic of the Mack­ay decision.

As Get­man points out, what is now con­sid­ered the ​“Mack­ay Doc­trine” is in direct con­flict with the actu­al Mack­ay decision:

The hold­ing is that it is ille­gal to decide which employ­ees are enti­tled to work after a strike on the basis of union activ­i­ty. But the dic­tum insists that the employ­er may give employ­ment pref­er­ence to those who work dur­ing a strike over those who strike, which is pre­cise­ly the same result, penal­iz­ing union activ­i­ty that was out­lawed by the holding.

“It is impos­si­ble to know,“ writes Get­man, ​“what led the Court to go out of its way to announce that the hir­ing of per­ma­nent replace­ments was con­sis­tent with the Act.” But one can eas­i­ly guess that the con­ser­v­a­tive judges, aghast at New Deal encroach­ments on prop­er­ty rights, sought to ensure that the bar­gain­ing pow­er of unions was ​“bal­anced” in some way.

The Mack­ay Doc­trine wasn’t real­ly put to use until the 1980s, start­ing with the Phelps-Dodge cop­per min­ing com­pa­ny, which bar­gained its Steel­work­ers local to impasse over dras­tic cuts in pay, ben­e­fits and work­ing con­di­tions, pushed them out on strike and then had the scabs vote to decer­ti­fy the union 12 months lat­er. This is how employ­ers have weaponized Mack­ay to union-bust much of Amer­i­can indus­try. (And it would be clear­ly ille­gal under the new Amer­i­can Bap­tist Homes standard.)

The results are far from Jus­tice Roberts’ neb­u­lous ​“right to pro­tect and con­tin­ue his busi­ness,” and far­ther still from ​“bal­anc­ing” the pow­er of unions and man­age­ment. Com­mon sense dic­tates that the right of man­age­ment to per­ma­nent­ly replace strik­ing work­ers be revis­it­ed; jus­tice demands that the Mack­ay Doc­trine be overturned.

Call me a cock­eyed opti­mist, but I think Mack­ay is vul­ner­a­ble to con­sti­tu­tion­al chal­lenge as a vio­la­tion of work­ers’ 1st amend­ment rights of free speech and assem­bly, 13th amend­ment pro­tec­tions against invol­un­tary servi­tude and 14th amend­ment guar­an­tees of due process and equal pro­tec­tion. As it is, the Amer­i­can Bap­tist Homes NLRB deci­sion is cer­tain to be resist­ed and appealed by busi­ness and indus­try, and will inevitably wind its way up the fed­er­al courts.

Even if the Court doesn’t go for those con­sti­tu­tion­al argu­ments, it could be ruled to have been ​“wrong the day it was decid­ed” for hav­ing ignored both the plain lan­guage of the law, as well as the clear leg­isla­tive intent. Or the Court could decide that their pre­de­ces­sors act­ed in the pub­lic inter­est by attempt­ing to ​“bal­ance” the pow­er of unions and man­age­ment in 1938, but that the track record of Mack­ay since 1983 demon­strates that true bal­ance can only be achieved by restor­ing the right to strike with­out reprisal.

Or if the Court real­ly wants to weasel out of the con­tro­ver­sy, they could lean on the cru­cial (and cru­cial­ly for­got­ten) ​“pro­tect and con­tin­ue his busi­ness” por­tion of the ini­tial Mack­ay dic­tum — only grant­i­ng the ​“right” to per­ma­nent­ly replace strik­ers to employ­ers who can demon­strate that they might go out of busi­ness oth­er­wise, or, as in Amer­i­can Bap­tist Homes, that they have no ulte­ri­or union-bust­ing motive.

Not that Julius Get­man would nec­es­sar­i­ly agree with my pro­pos­al. ​“The long exis­tence of the doc­trine,” he writes, ​“its accep­tance by Court after Court, and the fact that it has sur­vived attempts to over­turn it by amend­ment all will make it a ward of stare decis­es, safe even from lib­er­al courts.”

Get­man is a bril­liant and accom­plished legal schol­ar. I’m just an orga­niz­er who argues with lawyers a lot. So, with respect, I don’t see a sub­stan­tial down­side to try­ing. It was the dogged pur­suit of anti-union law­suits by the right-wing — often, ini­tial­ly, unsuc­cess­ful — that helped make Mack­ay prece­dent, as well as brought us on the verge of out­law­ing neu­tral­i­ty agree­ments and out­law­ing the union shop in the pub­lic sec­tor. It is time that we launched a sus­tained counter-offen­sive in the courts.

And what about strik­ing work­ers who do lose their jobs under the cur­rent doc­trine? Who could argue against tak­ing every step imag­in­able to restore their rights and their livelihoods?