In the Brooks v. National Labor Relations Board case of 1954, the U.S. Supreme Court ruled in favor of an employer's right to refuse reemployment to striking workers who had applied for their old jobs while still on strike and before any offer by the employer. The court held that Section 8(a)(3) of the National Labor Relations Act did not require employers to discriminate between strikers applying for reinstatement and new applicants for employment after a strike was over, as long as there was no unfair labor practice involved or discrimination against union members. This decision clarified that employees participating in economic strikes (strikes seeking improved wages, hours or other working conditions), rather than unfair labor practice strikes (protests against illegal actions by employers), do not have an absolute right to reinstatement.

In the dissenting opinion for Brooks v. National Labor Relations Board, Justice Robert H. Jackson disagreed with the majority's decision to uphold an NLRB ruling that a company violated labor laws by refusing to hire union members who had previously gone on strike against it. He argued that this interpretation of the law was overly broad and could potentially infrive upon employers' rights to choose their employees freely. Furthermore, he contended that there was no clear evidence in this case showing anti-union discrimination or unfair labor practices by the employer as required under federal law for such a violation to be established. Instead, he believed that any refusal of employment in this instance may have been due more so to personal reasons rather than solely because these individuals were part of a union or had participated in past strikes.