The Board had conceded in its Reply Brief that an employer had the right to utilize strikebreakers. "The Act clearly does not forbid him, in the absence of such unfair labor practices, to replace the striking employees with new employees or authorize an order directing that all strikers be reinstated and new employees discharged." The Supreme Court's decision not only squared completely with the Board's brief and previous Board decisions, but also reflected the deeply conservative construction of the Act that the NLRB had taken (worried that an assertive reading and application of the NLRA would lead the Court to find the Act unconstitutional). But the Court went much further in its decision than merely deferring to the expertise of the Board. The high court deliberately utilized 19th-century judicial rulings to protect employer prerogatives at the expense of employee rights. Although the intent of the NLRA was to protect strike actions to provide workers with a source of bargaining power, "Mackay Radio" inverted that dynamic so that the strike became an advantage to employers. Commentators also point out that, even if the ruling's "Lochner" era legal analysis is appropriate and correctly applied, "Mackay Radio" is flawed due to the economic assumptions the Court made. Justice Roberts' opinion assumed perfect competition in labor markets, a lack of monopsony, no statistical discrimination, no information asymmetry, market rationality, and a legal regime which provided a level playing field and equal protection under the law. Some—and possibly all—of these assumptions are incorrect. Worse, however, the "Mackay Radio" decision fashioned strong incentives which made it rational for one bargainer (management) to refuse to cooperate and opt out of bargaining. The Court also made assumptions about the business necessity of hiring permanent replacement workers which proved incorrect. Legal scholars, economists and others have pointed out that because most strikes are of an extremely short duration, employers do not need to hire replacements of any kind. Additionally, a large majority of businesses may operate for long periods of time without hiring permanent replacement workers by relying on managerial or supervisory personnel, temporary replacements, or workers loaned from other subsidiaries; contracting out work; or stockpiling inventory. The Court not only assumed that an employer needed to hire replacements in order continue operations but also that the employer must grant replacement workers permanent status to induce them to work. Not only is this assumption unwarranted, but the Court itself recognized this in later rulings. In "Erie Resistor," "Great Dane Trailers," and "Fleetwood Trailer," the Court held that employer tactics which are "inherently destructive" of employee rights are enough to run afoul of the NLRA, and no legitimate business reasons is a defense.