McCartin — Volume 57, Issue 3

McCartin examines the values and assumptions underlying American labor law by comparing the right to strike in public and private sectors from 1945 to 2005. James B. Atleson's foundational work Values and Assumptions in American Labor Law opened with dictum from NLRB v. Mackay Radio & Telegraph Company, establishing that nothing in the National Labor Relations Act should deprive an employer of the right to protect business by replacing strikers. McCartin traces how the Mackay doctrine's implications evolved dramatically across three periods. From 1945 to mid-1970s, private sector developments liberalized strike rights while public sector law lagged, yet public sector workers cited private sector protections to justify illegal strikes. During 1975-1981, economic crisis, deindustrialization, and deregulation shattered established labor relations patterns in both sectors; public sector employers led the way toward confrontation, normalizing permanent striker replacement. After 1981, patterns converged as private sector employers invoked Mackay rights, breaking prominent strikes including the PATCO strike and citing Ronald Reagan as inspiration. The permanent replacement of striking workers became prevalent in both sectors by century's end. McCartin argues that public and private sector labor law histories cannot be understood separately, as developments in each sector had enormous impacts on the other, particularly regarding how the Mackay doctrine fundamentally weakened the strike weapon.

Topics: Labor & Employment · Legal History · Administrative Law

Keywords: right to strike · NLRB v. Mackay Radio · permanent replacement workers · PATCO strike · Wagner Act · union power · striker replacement · labor relations