This is the seventh article in the Judicial Amendment Project series on the history of the National Labor Relations Act. The stories in the series to date include:
For many years, employee strikes were common and often in the news while lockouts by employers were rare. Today, lockouts have become far more common than in years past. There are reasons employers have become more willing to lock out their employees.
In both lockouts and strikes, an employer’s workers are not working, so it may seem that the only difference between the two is who made the decision for the employees to be out of work. Employees strike when they think striking will put pressure on their employer to agree to the employees’ demands. Employers lock out workers who want to continue working to pressure them to accept contract terms the employer wants.
But like the employer’s ability to impose its proposal when the parties are at impasse, the lockout has become a powerful employer bargaining tool, while the strike has been declawed. What is most puzzling about these results is that the National Labor Relations Act (NLRA) says that the right to strike is to be protected, but says nothing about protecting the lockout. The explanation is that judges have judicially amended the NLRA to weaken strikes, while making lockouts far more powerful.
The NLRA has been interpreted to create two types of lockouts – defensive lockouts and offensive lockouts. Early decisions allowed employers to use “defensive lockouts.” Defensive lockouts were timed by employers to take place when the employer would be less vulnerable and, depending on the industry, the employees would feel more pressure from being out of work. Consider sports, for example. A lockout in the off-season when fans would not be disappointed if games were not held could pressure the players to settle and let the employer avoid a strike during the season. In other words, the employer could time the work stoppage to reduce its impact and its power.
In 1965, in American Ship Building v. NLRB, the Supreme Court expanded the employer’s right to lock out its employees. That decision let employers lock out their employees at any time there was no contract in effect. That meant that employers could lock out their employees even when there was no threatened strike and no need to control the timing to avoid maximum damage to the employer. The Supreme Court took the position that as long as the employer’s purpose was to put economic pressure on the employees, the lockout was legal.
In a second case, NLRB v. Brown Food Store, the court let employers hire workers to replace the locked out workers. The case involved employees whose employer was a member of a “multi-employer bargaining unit.” Multi-employer bargaining units are common in some industries. Sports teams are a good example that most people know about, because their negotiations tend to get strong news coverage.
The court in the Brown Food Store case allowed employers to lock out their employees and hire temporary replacements when the union struck one employer member of the multi-employer bargaining unit. The court said that allowing the employers in the bargaining unit whose employees were not on strike to lock out their employees and hire temporary replacements was necessary to keep the multi-employer bargaining unit together. This decision took away a union tool of pressuring one employer in the group to agree to its demands because it was losing business to other employers during a strike, a tactic known as whipsawing. The court said it was concerned that the union’s ability to whipsaw one of the employers would harm the employers’ solidarity.
Worker rights to strike and to bargain (both of which are protected in the NLRA) would be very different if the court showed similar concern about the solidarity of workers in all its decisions. While the employers and unions in American Ship Building and Brown had long and successful bargaining relationships, these decisions signaled to lower courts and the National Labor Relations Board (NLRB) that most lockouts were legal. Following the Supreme Court decisions in American Ship Building and Brown, the NLRB expanded employers’ ability to replace locked-out workers. The NLRB, in Harter Equipment, allowed an employer that was not a part of a multi-employer bargaining unit to lock out its employees and hire temporary replacements. Then the NLRB said that the employer could lock out employees who wanted to return to work after a strike, while allowing employees who worked during the strike to continue working. This clearly discriminated against the workers who had exercised their right to strike, and the US Court of Appeals reversed. The NLRB even held that an employer could lock out its employees and then cut off disability benefits of disabled workers. The agency said the disabled employees would not have been working if they were able-bodied because of the lockout. Therefore they could not collect their disability benefits, which were designed to replace lost wages.
The concern is not just that these decisions make unions and their members less powerful than employers. The concern is that judges are supposed to interpret laws that Congress or state legislatures make, not change them.
The NLRA says that employers may not discriminate against employees for the purpose of discouraging employees’ union activity. Locking out employees because they belong to a union which is negotiating a contract with their employer does exactly that. It discourages employees from joining a union and trying to negotiate a favorable contract because they may be prevented from working and lose pay as a result.
When employers replace union workers with nonunion workers, it is even more evident that the lockout will discourage employees from using their legal right to unionize and negotiate a good contract.
And when employees can be locked out for staying on strike longer than other workers, the lockout will not only discourage unionization and collective bargaining but will also destroy the solidarity of striking workers.
The lockout decisions create a clear conflict with the purpose of the law Congress enacted. It should come as no surprise that since those decisions were handed down, lockouts have occurred more frequently. In addition, lockouts have lasted much longer since employers were legally authorized to hire temporary replacements for locked out workers. After the NLRB decision allowing all employers to use temporary replacements during lockouts, 75 percent of lockouts with replacements lasted more than a year, while before that decision only 31 percent of lockouts with replacements lasted that long. Also, lockouts that started two years before the decision lasted an average of 67 days. Five years later, lockouts lasted an average of 1010 days, nearly three years. Imagine the discouraging effect of being locked out of your job for almost three years because you supported a collective bargaining agreement with decent working conditions.
The expansion of employers’ right to lock out their employees did not happen in a vacuum.
At the same time that courts were expanding employers’ power to lock out employees without penalty, courts narrowed employees’ right to strike, as shown in earlier stories in this series.
We are living today with court decisions that have changed the balance of power between unions and employers and that undermine the law’s purpose of balancing the power of corporations with the collective power of workers. Little wonder that lockouts are both more common and longer.