In a recent article we discuss the issue of the use of permanent replacements for striking employees under the National Labor Relations Act (NLRA) Our discussion focuses on the efficiency aspects of the seminal 1938 case of NLRB v. Mackay Radio and Telegraph Co. In the article, we propose a “negotiations” approach, which we argue is likely to result in a more economically efficient interpretation of the Mackay doctrine. As has been the case with other proposals made with respect to this very contentious issue, our proposal has confronted some criticism. Professor William R. Corbett, in a recent piece in the Ohio State Law Journal, has attacked our proposal as “theoretically unsound” and unlikely to work in practice. In this article, we reply to Professor Corbett's criticism. In Part II, we briefly restate our initial proposal. In Part III, we present Professor Corbett's argument and respond to the criticisms he levies against our proposal. In Part IV, we discuss what we believe is the major flaw in Professor Corbett's attack, i.e., a misunderstanding of the labor relations process and its implications for the development of public policy with respect to the striker replacement issue.
Leonard Bierman & Rafael Gely, "Let's Call It A Draw": Striker Replacements and the Mackay Doctrine, 58 Ohio St. L.J. 1003 (1997)