US Labor Law Protects the Use of Scabs. Rebuilding Workplace Solidarity Is the Solution.

US labor law gives employers carte blanche to replace striking workers with scabs, like the Big Three automakers are doing against the UAW right now. But history shows that workers can create their own “law” of the workplace through a culture of solidarity.

Members of the Writers Guild of America West join striking United Auto Worker members at a rally in front of the Stellantis Mopar facility on September 26, 2023 in Ontario, California. (Gina Ferazzi / Los Angeles Times via Getty Images)

Last Friday, the United Automobile Workers announced that workers at two more assembly plants would walk off the job, bringing the number of autoworkers now on picket lines to twenty-five thousand as part of the union’s escalating “stand-up” strike. The escalation solidifies 2023 as another headline year for worker collective action, according to Cornell University’s Industrial and Labor Relations (ILR) Labor Action Tracker.

In response to the strikes, employers have deployed one of their most hated and devastating economic weapons: the replacement worker, or “scab” as they are more affectionately known in the labor movement. Luis Feliz Leon at Labor Notes reported that one hundred scabs had arrived on Tuesday, September 19, at a GM parts facility in Burton, Michigan. Later that afternoon, “five strikers were hit by a car leaving a GM parts center in Swartz Creek, Michigan.” Striking workers believed that the driver was a scab, although GM claims that the driver was a housekeeping worker employed by an outside contractor.

Whatever the particulars of this incident, past experience makes it clear that replacement workers not only undermine the strike effort by keeping the employer’s business running, but also inflame divisions among workers, both on the picket line and even after the strike ends — when striker and replacement have to work alongside one another.

Current US law permits employers to permanently replace striking workers — a euphemism, practically if not legally, for firing employees for striking. The history of that legal rule offers an interesting story about the “law in action,” the importance of worker solidarity and the possible path ahead for the labor movement.

The Mackay Radio Decision

Just three years after the passage of the National Labor Relations Act, the Supreme Court in 1938 decided National Labor Relations Board v. Mackay Radio & Telegraph Co. The Mackay Radio company transmitted and received telegraph, radio, cable, and other messages. Its “point-to-point” operators in San Francisco had recently organized with the American Radio Telegraphists Association, and when collective bargaining failed to produce an agreement, the union decided to strike.

To maintain operations during the strike, the company brought in operators from its Los Angeles, New York, and Chicago offices to replace the striking workers. After only three days, it became apparent that the strike would fail, and the striking workers offered to return to work. The company allowed them to return but had already promised eleven of the replacements that they could stay in the San Francisco office — a promise no doubt needed to induce the replacements to uproot and move from far-flung places. The company therefore told the returning workers it would have to accommodate the replacements first.

When negotiating the strikers’ return, the company gave the union a list of eleven strikers’ names, designating them as ineligible to return to work. Eventually, only five of the eleven replacements decided they wanted to stay in San Francisco, so six of the strikers were allowed to return. The remaining five “ineligible” workers, who happened to have been prominent in the strike activities, still had not been reinstated over the course of the next three weeks. The union then filed charges with the National Labor Relations Board (NLRB), arguing that the company had committed an unfair labor practice (ULP) by not reinstating all of the strikers.

Ultimately, the Supreme Court sided with the NLRB in its conclusion that the employer had violated the act by discriminating against the striking workers. The employer discriminated because the “sole” reason for not reinstating the strikers was that “they had been active in the union.” The court also declared that striking workers remain employees: they do not quit their jobs when they strike, and the employer may not terminate their employment status.

But the court also clarified that permanently replacing the striking workers was not, by itself, discrimination. According to the court, “an employer, guilty of no act denounced by the statute,” does not “lose the right to protect and continue his business by supplying places left vacant by strikers.” Furthermore, the employer “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.”

The implication — but, importantly, not the holding of Mackay Radio — is that an employer may permanently replace its striking employees legally. It just may not treat striking workers discriminatorily when reinstating them after a strike.

Labor Law and Worker Lawmaking

Mackay Radio is a good example of how a legal decision on a seemingly narrow subject can have dramatically far-reaching, even unanticipated, effects. At the time, the NLRB’s general counsel as well as the union’s president hailed Mackay Radio as a victory. Sustained criticism of the decision did not come until much later.

In more recent years, employers have routinely and predictably used replacement workers to undermine strikes. The consequences have been quite effective from employers’ point of view, but lethal for strikes and unions. The legalized used of replacement workers almost certainly contributed to the well-documented collapse in the number of strikes and work stoppages that coincided with the rise of neoliberalism in the latter part of the twentieth century.

In that light it is no wonder that the majority of labor law scholars denounce the Mackay Radio decision. But although the potentially destructive impact of permanent replacements was recognized very early on, relatively few employers “used or threatened to use permanent replacements” in the 1940s through the ’60s. In other words, Mackay Radio was decided in 1938, but the employer assault on labor did not begin until the 1970s and ’80s. Why didn’t employers use scabs during the intervening period?

Understanding why the use of replacement workers came much later requires zooming out and putting law in its social context. Just because an employer may employ scabs legally doesn’t necessarily mean labor is defenseless. As Ahmed White explains, after the federal courts declared the sit-down strike illegal in the 1930s, workers turned to mass picketing as their weapon of choice against employers. Mass picketing proved effective at closing off the employer’s business to customers and — more important — preventing the employer’s use of replacement workers.

So effective was this tactic that it underwrote an “unofficial norm” against the use of replacements. Although the Mackay Radio officially gave employers the power to replace their workers, few employers exercised that option because of that norm.

This unofficial norm, supported by labors’ own solidarity, is a brilliant example of what James Gray Pope has called “worker lawmaking.” In my interpretation, worker lawmaking refers to workers autonomously exercising democratic power over the workplace and society, building and enforcing their own unofficial “law.”

As a system of rules and norms, worker lawmaking is law-like, but it is not law. In fact, as I have discussed elsewhere, labor law itself has been the primary instrument used to destroy worker lawmaking. Pope’s prime example of this is the legal squelching of the sit-down strike. White provides another example: mass picketing succumbed in part to a provision of the infamously anti-labor Taft-Hartley Act, which prohibits unions from restraining or coercing workers who “refuse” to participate in the strike, including those who cross the picket line.

Also included in the Taft-Hartley Act was a total prohibition on secondary strikes and boycotts. Secondary strikes are strikes that target a business that buys or sells from the primary, struck employer, a tactic that often elicits the support of workers from different unions or industries. Because it targets such expressions of cross-union or cross-industry solidarity, the symbolic significance of the secondary strike ban is particularly damaging.

Employers’ resort to replacement workers is therefore just as much a story about the legally supported erosion of worker solidarity as it is about a 1938 Supreme Court decision. To the legal decisions, we could add a host of other factors that have contributed: declining union density, business unionism, the advent of the “consumer society” in the 1950s and ’60s, and an atomizing, hyper-individualistic neoliberal ideology that resonates with people’s lived experience under capitalism, in which control over one’s own labor is seen as subject to the impersonal and seemingly universal laws of the market.

Restoring the Freedom to Strike

The question is how to rebuild worker solidarity. There’s an obvious inclination to ban replacement workers, to expand the right to strike by placing an affirmative duty on employers not to hire scabs. While that might be the most efficient means to the end of stopping scabbing, I think we should aspire to more than this. Workers themselves, not the law, should be the first line of defense against employers’ attacks on the strike.

This starts with expanding what I call the freedom to strike. This strategy targets those affirmative bans on what should be perfectly legal and legitimate strike tactics. We need to eliminate or curtail the Taft-Hartley restrictions that undermined mass picketing and the unofficial norm against scabs in the 1950s. We should also remove Taft-Hartley’s ban on secondary strikes and boycotts, as well as the restrictions on strikes that demand the employer’s recognition of the union.

In fact, the PRO Act proposes removing the bans on secondary activity and recognition strikes; those parts of the bill should be championed, despite my reservations with other parts of the act that would strengthen workers’ dependence on bureaucratic procedures to get their unions recognized. Another way to encourage solidarity on and across picket lines is to allow striking workers to collect unemployment insurance, a possibility that Governor Gavin Newsom just vetoed in California.

These legal reforms can help lay the conditions for reinstituting worker lawmaking. Freeing and sustaining strike activity in these ways will give workers themselves, rather than fickle state officials and politicians, the power to confront recalcitrant, scab-hiring employers. It will also contribute to rebuilding a culture of worker solidarity and a new system of worker lawmaking — an unofficial law of, by, and for the working class.