Leftist legal scholars have argued that *NLRB v. Mackay Radio and Telegraph Co.*, 304 US 333 (1938) https://www.law.cornell.edu/supremecourt/text/304/333
which decided that employers could hire permanent replacements for strikers (at least for "economic" strikes as distinguished from strikes to protest unfair labor practices) was the beginning of a judicial "defanging" of the Wagner Act's radical potential, long before Taft-Hartley. Actually, in that case the NLRB had reserved judgment on the legality of permanently replacing economic strikers; disposition of that question had not been necessary for the board's decision (affirmed by the Court) that the employer had illegally refused to reinstate certain strikers for their union activities. Thus, the Supreme Court did not really have to answer the question in that case, and one may question whether it should have decided such a far-reaching question without the benefit of a ruling on it by the Board.
Besides, even if the Court had to decide that question, one could argue they decided it the wrong way. Prohibiting *temporary* replacements would often virtually force the employer to give in to the union, which IMO is not what the authors of the Wagner Act intended. (They wanted the government to guarantee that workers be free to unionize and to strike, not to guarantee that labor would always win.) But can the same be said about a prohibition of permanent replacements? I suppose that in some
cases it may be true that a guarantee of permanent employment is necessary to get replacements, but this is not always the case, and I doubt that it was so in the depression year of 1938. And consider the following words of no less a capitalist than Andrew Carnegie (arguing against even temporary replacements in most cases):
"...I would have the public give due consideration to the terrible temptation to which the working-man on a strike is sometimes subjected. To expect that one dependent upon his daily wage for the necessaries of life will stand by peaceably and see a new man employed in his stead, is to expect much. This poor man may have a wife and children dependent upon his labor. Whether medicine for a sick child, or even nourishing food for a delicate wife, is procurable, depends upon his steady employment. In all but a very few departments of labor it is unnecessary, and, I think, improper, to subject men to such an ordeal. In the case of railways and a few other employments it is, of course, essential for the public wants that no interruption occur, and in such case substitutes must be employed; but the employer of labor will find it much more to his interest, wherever possible, to allow his works to remain idle and await the result of a dispute, than to employ the class of men that can be inclined to take the place of other men who have stopped work. Neither the best men as men, nor the best men as workers, are thus to be obtained. There is an unwritten law among the best workmen: 'Thou shalt not take thy neighbor's job.' No wise employer will lightly lose his old employees. Length of service counts for much in many ways. Calling upon strange men should be the last resort." https://books.google.com/books?id=mPc7AQAAMAAJ&pg=PA549
In any event, it has been the law since *Mackay* that while employers cannot *fire* economic strkers, they can *permanently replace* them. (The difference in practice is that a "permanently replaced" worker, being still technically an employee, has first claim on his old job if a vacancy develops in the future.) But what if the Court had decided that hiring permanent replacements for economic strikers was illegal? The only plausible answer I can think of is that the decision would promptly have been overruled by Congress. I doubt very much that FDR (who expressed his surprise to Frances Perkins about some pro-labor NLRB decisions which he thought went too far) would veto a law overruling such a decision, and if he did, his veto would probably been overridden, if not in 1938 than by the more conservative 76th Congress in 1939. At the very latest it would surely have been reversed with Taft-Harrley. Of course a later, more pro-union Congress could resinstate it, but it would be hard to get enough votes for cloture. For example, in the heavily Demcoratic Congress of 1993-4, "Legislation to bar employers from hiring permanent replacements for striking workers appeared doomed yesterday after the Senate failed by seven votes to break a filibuster by conservatives. The "Workplace Fairness Act," a top legislative priority of organized labor endorsed by the Clinton administration, will be shelved for the year unless the filibuster can be broken in a second and final vote today -- which even the bill's proponents described as an unlikely outcome. In yesterday's largely party-line roll call, the Senate voted 53 to 47 to invoke cloture, a procedural move requiring 60 votes to limit debate and force a bill to passage. Proponents had been expecting to lose but hoped to fall only three or four votes short on the first vote..." https://www.washingtonpost.com/arch...nt-bill/32b7dc5f-e77f-462b-acee-da15529a2a03/
But let's hand-wave and assume that for some considerable period of time a ban on permanent replacements could be put into effect. What would the consequences be?
One should note that for some decades the effects of *Mackay* seem to have been limited because employers in fact tended not to hire permanent replacements. But that changed, especialy after President Reagan broke the PATCO strike. According to this 1991 account:
"The use of permanent replacement workers--commonly known as "scabs"--has skyrocketed in the United States since 1980. In most of the defining strikes of the last decade--the air traffic controllers, Phelps Dodge, Magic Chef, TWA, International Paper, Eastern, Greyhound, the Daily News--management brought in permanent replacement workers when workers went out on strike. A January 1991 General Accounting Office (GAO) study determined that employers hired permanent replacement workers in 17 percent of strikes in 1985 and 1989. Corporations and business associations, attempting to forestall legislation banning the use of permanent replacement workers, argue that their use has remained consistent over the last 50 years. Peter Eide, manager of labor law at the Chamber of Commerce, argues that the "threat to use permanent replacements was common prior to 1980" and that the general perception that their use has increased is a "labor-created, media-created" fiction. The GAO study, however, found that "about 45 percent of the employers and about 77 percent of the union representatives involved in strikes ... in 1985 and 1989 believe permanent strike replacements were hired in proportionately fewer strikes in the late 1970s than in the late 1980s." Most commentators trace the rise in permanent replacement workers to the 1981 PATCO strike, when then-President Ronald Reagan fired striking air traffic controllers and brought in permanent replacements. Labor commentators argue Reagan's action sent a message to U.S. employers that the ground rules of labor- management conflict had changed, and that more aggressive and ruthless behavior was acceptable. The consequence of the shift in employer attitudes and strategies has been profound. "By basically pressuring groups to go out on strike by remaining totally rigid [in negotiations]," charges Cindy Yeast, spokesperson for the Association of Flight Attendants, companies can "get rid of an older, more senior workforce" and replace it with a younger, non-unionized and less expensive one. Yeast's assertion is echoed by labor leaders across the country, including union representatives of the workers at Midland Steel, Ravenswood, Eastern and the Daily News. More significant than the number of cases in which corporations actually hire permanent replacements is the extent to which they threaten to do so. The GAO study estimated that companies involved in strikes announced they would hire permanent replacements in about 31 percent of 1985 strikes and 35 percent of 1989 strikes. Labor leaders say the numbers are even higher. Warren Davis, regional director of the Northeast Ohio region of the UAW, says locals in his region are "threatened with scabs" in about 60 percent of their contract negotiations. Lynn Williams, president of the USWA, told a March 12 hearing of the Senate Subcommittee on Labor that "in a recent informal survey of Steelworker-represented locations where strikes have occurred in the last decade, three-fourths of the respondents reported the use of permanent replacements." The effect of these threats is to undercut labor's bargaining power by drastically curtailing its ability to make use of its most potent weapon, the strike." https://multinationalmonitor.org/hyper/issues/1991/04/mm0491_04.html
The same source notes the standard arguments of employers whenever bills are introduced to overrule *Mackay*: "Led by the Chamber of Commerce, business has formed an 'Alliance to Keep America Working' to oppose the striker replacement legislation. It includes the National Association of Manufacturers, the Associated General Contractors of America, Associated Builders and Contractors, the National Federation of Independent Business, General Dynamics, International Paper,
3M, USX and dozens of other companies. Business lobbyists describe the effects of passage of the bill in apocalyptic terms. 'Were the bill to become law,' says the Chamber of Commerce's Eide, 'it would completely upset the economic balance in collective bargaining situations, giving unions all power.... Employers would have to agree to what unions wanted or shut down.' The business community argues that the fact that the bill would allow employers to use temporary replacements during a strike is irrelevant, a claim hotly disputed by labor. 'It is virtually impossible to hire temporary replacements for anything above the most unskilled job,' Eide says. But labor representatives dismiss this claim as groundless..."
One argument used against *Mackay* is that Canadian employers manage to get along without permanent replacements. https://onlabor.org/why-canadian-employers-do-not-permanently-replace-strikers/ Indeed, two provinces--Quebec and British Columbia--ban even *temporary* replacements: "Two jurisdictions, British Columbia and Quebec, go further still and prohibit employers from using replacement workers to perform bargaining unit work entirely, including both existing employees and newly hired workers. The Quebec “anti-scab” legislation (s. 109.1) was introduced in 1977 following a prolonged period of labour unrest and picket line violence. BC’s left-leaning New Democratic Party introduced that province’s ban on replacement workers in 1993 and the law has survived notwithstanding an extended period in which the conservative Liberal Party governed the province." (Ontario also briegfly banned temporary replacements when the NDP was in charge.)
(BTW, President Clinton signed an executive order in 1995 prohibiting federal contractors from hiring permanent replacements. However, this was struck down in *Chamber of Commerce of the United States, et al, v. Reich*, 74 F.3d 1322 (D.C. Cir. 1996), rehearing denied, 83 F.3d 442 (D.C. Cir. 1996). https://casetext.com/case/chamber-of-commerce-of-us-v-reich-2 The Clinton administration did not appeal the case to the Supreme Court. There is little doubt how the Rehnquist Court would have ruled, and still less on how the Roberts Court would rule in case of a similar attempted order by Presidents Obama or Biden. I wonder though if the Waren Court might have been more open to a similar order by President Johnson. )
Onr other possibility--maybe the Court could have ruled that employers can hire permanent replacements but *only* if they can first show that attempting to fill the jobs with temporary replacments failed? For some reason, I have never seen this possible compromise advocated...
which decided that employers could hire permanent replacements for strikers (at least for "economic" strikes as distinguished from strikes to protest unfair labor practices) was the beginning of a judicial "defanging" of the Wagner Act's radical potential, long before Taft-Hartley. Actually, in that case the NLRB had reserved judgment on the legality of permanently replacing economic strikers; disposition of that question had not been necessary for the board's decision (affirmed by the Court) that the employer had illegally refused to reinstate certain strikers for their union activities. Thus, the Supreme Court did not really have to answer the question in that case, and one may question whether it should have decided such a far-reaching question without the benefit of a ruling on it by the Board.
Besides, even if the Court had to decide that question, one could argue they decided it the wrong way. Prohibiting *temporary* replacements would often virtually force the employer to give in to the union, which IMO is not what the authors of the Wagner Act intended. (They wanted the government to guarantee that workers be free to unionize and to strike, not to guarantee that labor would always win.) But can the same be said about a prohibition of permanent replacements? I suppose that in some
cases it may be true that a guarantee of permanent employment is necessary to get replacements, but this is not always the case, and I doubt that it was so in the depression year of 1938. And consider the following words of no less a capitalist than Andrew Carnegie (arguing against even temporary replacements in most cases):
"...I would have the public give due consideration to the terrible temptation to which the working-man on a strike is sometimes subjected. To expect that one dependent upon his daily wage for the necessaries of life will stand by peaceably and see a new man employed in his stead, is to expect much. This poor man may have a wife and children dependent upon his labor. Whether medicine for a sick child, or even nourishing food for a delicate wife, is procurable, depends upon his steady employment. In all but a very few departments of labor it is unnecessary, and, I think, improper, to subject men to such an ordeal. In the case of railways and a few other employments it is, of course, essential for the public wants that no interruption occur, and in such case substitutes must be employed; but the employer of labor will find it much more to his interest, wherever possible, to allow his works to remain idle and await the result of a dispute, than to employ the class of men that can be inclined to take the place of other men who have stopped work. Neither the best men as men, nor the best men as workers, are thus to be obtained. There is an unwritten law among the best workmen: 'Thou shalt not take thy neighbor's job.' No wise employer will lightly lose his old employees. Length of service counts for much in many ways. Calling upon strange men should be the last resort." https://books.google.com/books?id=mPc7AQAAMAAJ&pg=PA549
In any event, it has been the law since *Mackay* that while employers cannot *fire* economic strkers, they can *permanently replace* them. (The difference in practice is that a "permanently replaced" worker, being still technically an employee, has first claim on his old job if a vacancy develops in the future.) But what if the Court had decided that hiring permanent replacements for economic strikers was illegal? The only plausible answer I can think of is that the decision would promptly have been overruled by Congress. I doubt very much that FDR (who expressed his surprise to Frances Perkins about some pro-labor NLRB decisions which he thought went too far) would veto a law overruling such a decision, and if he did, his veto would probably been overridden, if not in 1938 than by the more conservative 76th Congress in 1939. At the very latest it would surely have been reversed with Taft-Harrley. Of course a later, more pro-union Congress could resinstate it, but it would be hard to get enough votes for cloture. For example, in the heavily Demcoratic Congress of 1993-4, "Legislation to bar employers from hiring permanent replacements for striking workers appeared doomed yesterday after the Senate failed by seven votes to break a filibuster by conservatives. The "Workplace Fairness Act," a top legislative priority of organized labor endorsed by the Clinton administration, will be shelved for the year unless the filibuster can be broken in a second and final vote today -- which even the bill's proponents described as an unlikely outcome. In yesterday's largely party-line roll call, the Senate voted 53 to 47 to invoke cloture, a procedural move requiring 60 votes to limit debate and force a bill to passage. Proponents had been expecting to lose but hoped to fall only three or four votes short on the first vote..." https://www.washingtonpost.com/arch...nt-bill/32b7dc5f-e77f-462b-acee-da15529a2a03/
But let's hand-wave and assume that for some considerable period of time a ban on permanent replacements could be put into effect. What would the consequences be?
One should note that for some decades the effects of *Mackay* seem to have been limited because employers in fact tended not to hire permanent replacements. But that changed, especialy after President Reagan broke the PATCO strike. According to this 1991 account:
"The use of permanent replacement workers--commonly known as "scabs"--has skyrocketed in the United States since 1980. In most of the defining strikes of the last decade--the air traffic controllers, Phelps Dodge, Magic Chef, TWA, International Paper, Eastern, Greyhound, the Daily News--management brought in permanent replacement workers when workers went out on strike. A January 1991 General Accounting Office (GAO) study determined that employers hired permanent replacement workers in 17 percent of strikes in 1985 and 1989. Corporations and business associations, attempting to forestall legislation banning the use of permanent replacement workers, argue that their use has remained consistent over the last 50 years. Peter Eide, manager of labor law at the Chamber of Commerce, argues that the "threat to use permanent replacements was common prior to 1980" and that the general perception that their use has increased is a "labor-created, media-created" fiction. The GAO study, however, found that "about 45 percent of the employers and about 77 percent of the union representatives involved in strikes ... in 1985 and 1989 believe permanent strike replacements were hired in proportionately fewer strikes in the late 1970s than in the late 1980s." Most commentators trace the rise in permanent replacement workers to the 1981 PATCO strike, when then-President Ronald Reagan fired striking air traffic controllers and brought in permanent replacements. Labor commentators argue Reagan's action sent a message to U.S. employers that the ground rules of labor- management conflict had changed, and that more aggressive and ruthless behavior was acceptable. The consequence of the shift in employer attitudes and strategies has been profound. "By basically pressuring groups to go out on strike by remaining totally rigid [in negotiations]," charges Cindy Yeast, spokesperson for the Association of Flight Attendants, companies can "get rid of an older, more senior workforce" and replace it with a younger, non-unionized and less expensive one. Yeast's assertion is echoed by labor leaders across the country, including union representatives of the workers at Midland Steel, Ravenswood, Eastern and the Daily News. More significant than the number of cases in which corporations actually hire permanent replacements is the extent to which they threaten to do so. The GAO study estimated that companies involved in strikes announced they would hire permanent replacements in about 31 percent of 1985 strikes and 35 percent of 1989 strikes. Labor leaders say the numbers are even higher. Warren Davis, regional director of the Northeast Ohio region of the UAW, says locals in his region are "threatened with scabs" in about 60 percent of their contract negotiations. Lynn Williams, president of the USWA, told a March 12 hearing of the Senate Subcommittee on Labor that "in a recent informal survey of Steelworker-represented locations where strikes have occurred in the last decade, three-fourths of the respondents reported the use of permanent replacements." The effect of these threats is to undercut labor's bargaining power by drastically curtailing its ability to make use of its most potent weapon, the strike." https://multinationalmonitor.org/hyper/issues/1991/04/mm0491_04.html
The same source notes the standard arguments of employers whenever bills are introduced to overrule *Mackay*: "Led by the Chamber of Commerce, business has formed an 'Alliance to Keep America Working' to oppose the striker replacement legislation. It includes the National Association of Manufacturers, the Associated General Contractors of America, Associated Builders and Contractors, the National Federation of Independent Business, General Dynamics, International Paper,
3M, USX and dozens of other companies. Business lobbyists describe the effects of passage of the bill in apocalyptic terms. 'Were the bill to become law,' says the Chamber of Commerce's Eide, 'it would completely upset the economic balance in collective bargaining situations, giving unions all power.... Employers would have to agree to what unions wanted or shut down.' The business community argues that the fact that the bill would allow employers to use temporary replacements during a strike is irrelevant, a claim hotly disputed by labor. 'It is virtually impossible to hire temporary replacements for anything above the most unskilled job,' Eide says. But labor representatives dismiss this claim as groundless..."
One argument used against *Mackay* is that Canadian employers manage to get along without permanent replacements. https://onlabor.org/why-canadian-employers-do-not-permanently-replace-strikers/ Indeed, two provinces--Quebec and British Columbia--ban even *temporary* replacements: "Two jurisdictions, British Columbia and Quebec, go further still and prohibit employers from using replacement workers to perform bargaining unit work entirely, including both existing employees and newly hired workers. The Quebec “anti-scab” legislation (s. 109.1) was introduced in 1977 following a prolonged period of labour unrest and picket line violence. BC’s left-leaning New Democratic Party introduced that province’s ban on replacement workers in 1993 and the law has survived notwithstanding an extended period in which the conservative Liberal Party governed the province." (Ontario also briegfly banned temporary replacements when the NDP was in charge.)
(BTW, President Clinton signed an executive order in 1995 prohibiting federal contractors from hiring permanent replacements. However, this was struck down in *Chamber of Commerce of the United States, et al, v. Reich*, 74 F.3d 1322 (D.C. Cir. 1996), rehearing denied, 83 F.3d 442 (D.C. Cir. 1996). https://casetext.com/case/chamber-of-commerce-of-us-v-reich-2 The Clinton administration did not appeal the case to the Supreme Court. There is little doubt how the Rehnquist Court would have ruled, and still less on how the Roberts Court would rule in case of a similar attempted order by Presidents Obama or Biden. I wonder though if the Waren Court might have been more open to a similar order by President Johnson. )
Onr other possibility--maybe the Court could have ruled that employers can hire permanent replacements but *only* if they can first show that attempting to fill the jobs with temporary replacments failed? For some reason, I have never seen this possible compromise advocated...