Employment Litigation · Primary-source case analysis

Mackay Radio: Economic Strikers Could Be Replaced, but Not Discriminated Against for Union Activity

By Aneeta Mishra and Timothy Chan

Published August 20, 2026

NLRB v. Mackay Radio & Telegraph Co. arose from a strike at a San Francisco communications office, the use of replacement workers, and the employer’s refusal to reinstate selected union activists afterward.

Economic strikers remained statutory employees

Participation in a strike did not itself terminate employee status or authorize retaliation for protected concerted activity.

The employer could keep operating

The NLRA did not require the employer to shut down during an economic strike or discharge genuine permanent replacements when strikers sought to return.

Anti-union selection was unlawful

The employer could not choose which strikers to exclude from reinstatement because those individuals had been especially active in union affairs.

Strike classification and current law matter

Economic and unfair-labor-practice strikers have different reinstatement rights, and later Board doctrine governs offers, vacancies, preferential lists, misconduct, and remedies.

Key takeaways

• Classify the strike and identify any employer unfair labor practices.
• Document whether replacements were temporary or genuine permanent hires.
• Preserve return-to-work offers and every reinstatement decision.
• Compare treatment of union leaders and similarly situated strikers.