Suchergebnisse

The Court and union organizing -- The Supreme Court and collective bargaining -- The Supreme Court and the right to strike -- The Court and the protected status of economic pressure -- The Supreme Court, union picketing, and boycotts -- Exclusivity and the duty of fair representation -- The Court and the definition of "Employee" under the NLRA -- The Supreme Court and arbitration

In 1938, in NLRB v. Mackay Radio & Telegraph Co., the Supreme Court offered one of its earliest interpretations of the National Labor Relations Act. Although the Court's holding provided that employers may not discriminate against employees for their union activity when the strike is over and workers are reinstated, dicta in the opinion also provided that under the NLRA employers enjoy an unrestricted right to replace strikers. In the 70 years since the Court's announcement, scholars remain baffled by the contradictions presented by the "Mackay doctrine"—a rule that forbids employers from discharging legally protected strikers while, at the same time, allows those employers to hire other workers to replace strikers. Such a rule seemingly upsets the neutrality toward the parties the NLRA was intended to embody. But as irreconcilable as these principles seem, the Mackay doctrine failed to attract sustained criticism until the 1960s. To account for this latter day criticism, the authors examine the history of the case, but more significantly, the developments in labor law and industrial relations in the years since Mackay was decided. Their analysis reveals some of the basic problems, tensions, and social understandings that underlie the NLRA. Ultimately, they conclude, Mackay reiterates the abiding need for worker solidarity in collective bargaining. The willingness of individuals to make cause with others, and make personal sacrifices for the common good, not only inform labor relations, but are central to the survival of any democracy.

In A Common Law for Labor Relations: A Critique of the New Deal Labor Litigation, Professor Epstein claimed to have undertaken serious criticism and review of the American system of labor relations as it has been structured by two pieces of New Deal era legislation. Although such a work could have been of great value to diverse disciplines, Epstein's lacks empirical scope and raises methodological questions. Instead of grappling with the subject matter seriously, Epstein merely uses the late nineteenth century form of the common law as a benchmark against which to compare the modern statutory schemes set forth in the Norris-LaGuardia Act and the National Labor Relations Act. As a result, he never answers the questions a genuine critical evaluation would have to address. In this response, the authors argue that Professor Epstein's work does not contribute in any way to our existing knowledge about labor law, it sheds no light on the reality of labor relations, and it adds nothing to our understanding of the impact labor law has had on society.