## Facts

- Mackay Radio & Telegraph Co. operated interstate and foreign communications and employed operators and clerks in San Francisco, many affiliated with a union local representing land (point-to-point) operators.
- The union sought employer agreements on employment terms; after delays in negotiations, the local participated in a broader strike call.
- On October 4, 1935, the San Francisco operators struck in connection with the labor dispute.
- The company continued operations by bringing in workers from other locations to perform the strikers’ work.
- After the strike, the company reinstated most strikers but refused to reinstate five employees identified as active union participants.
- The NLRB found the refusal to reinstate the five was discrimination based on union activity and ordered reinstatement with back pay and related remedial measures.
- The Ninth Circuit declined to enforce the Board’s order; the Supreme Court granted review.

## Issues

1. Whether workers who strike in connection with a current labor dispute remain “employees” under the NLRA.
2. Whether refusing to reinstate selected strikers because of their union activity constitutes an unfair labor practice.
3. Whether the NLRA permits an employer to hire replacement workers during an economic strike and retain them after the strike ends.

## Decision

- The Supreme Court reversed the Ninth Circuit and largely upheld the NLRB’s order.
- The Court held that the strike arose in connection with a labor dispute and the strikers remained “employees” under the NLRA during the strike.
- The Court held that excluding particular strikers from reinstatement solely due to their union activity constituted unlawful discrimination under the NLRA.
- The Court approved the Board’s remedy requiring reinstatement and back pay for the five discriminated-against employees.
- The Court stated that the NLRA does not bar an employer from continuing operations during an economic strike by hiring replacements, and the employer is not required to discharge those replacements to reinstate strikers when the strike ends.

## Legal Principles

- Employees who stop work due to, or in connection with, a current labor dispute remain “employees” protected by the NLRA.
- Discriminating in reinstatement to discourage union membership or activity violates the NLRA’s prohibition on discriminatory treatment in hire or tenure.
- An employer may hire replacement workers to continue business during an economic strike and may retain those replacements after the strike, but may not use reinstatement decisions to penalize union activity.

## Conclusion

The Court held that economic strikers remain statutory employees and that an employer commits an unfair labor practice by denying reinstatement to selected strikers because of union activity, while also recognizing that the NLRA permits hiring and retaining replacement workers during and after an economic strike.


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