Last week, the Kentucky Supreme Court held a question and answer sessions for the students here at the University of Louisville, Brandeis School of Law.  One student asked a question about whether the court, which consists of very experienced judges but relatively new justices, will follow stare decisis.  A discussion ensued about the value of stare decisis.  It maintains certainty and predictability for all those governed by the laws.  Then, one justice pointed out that there are exceptions to stare decisis, including when changed circumstances call for a revision in the law.

 

In labor law, the so called "Mackay doctrine" raises the issue of the limits of stare decisis.  The doctrine was first stated as dicta by the U.S. Supreme Court in 1938.  The Mackay doctrine permits employers to permanently replace economic strikers, those who strike to put pressure on their employer to accept the economic terms proposed by their union.  (The other type of striker is termed an unfair labor practice striker, a person who strikes because of employer conduct unlawful under the National Labor Relations Act.)  NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). 

 

In chapter one of Labor Law Stories, The Story of NLRB v. Mackay Radio & Telegraph Co.:  The High Cost of Solidarity, Julius Getman and Thomas C. Kohler point out that circumstances have changed dramatically since 1938.  The right to strike is subject to more severe restrictions and "the ability of employers in general to cope with a strike without hiring permanent replacements has significantly improved."  For many, strike breaking has become an acceptable business tactic.  Moreover, "[b]y the mid 1960's, the Mackay doctrine had become obviously inconsistent with the interpretation of Section 8(a)(3) [which prohibits employers from discriminating in order to discourage union membership] developed by the Board and the courts."  Thus, several considerations indicate that the Board and the courts should deviate from stare decisis and overrule the longstanding doctrine.  The doctrine relies on outdated dicta incompatible with changed circumstances and other current law; and one very reason for having an expert agency, such as the Board, is to adapt the law to such changes.

 

If there is a second lesson to be drawn from this chapter, it is, perhaps, the power of checks and balances.  The hope remains that, if the Board and the courts will not deviate from stare decisis, a new administration will reintroduce legislation, which has failed to pass to date, to overturn the Mackay doctrine.