Preferences Given to Striker Replacements Create an Illegal Lockout

from the October 2012 LEL Labor and Employment Law News

At first glance, a lockout may seem to be the equivalent of a strike. In a lockout, there is a work stoppage initiated by the employer, while in a strike, the employees initiate the stoppage. However, there are many important differences. NLRA § 13 says that the right to strike should not be interfered with, impeded, or diminished, but there is no equivalent protection given to a lockout. Indeed, an employer’s lockout of employees bears a strong resemblance to a violation of Sec. 8(a)(1), (3), because, in a lockout, the employer takes action against employees because of their union and concerted activities.

 A recent lockout resulted in a finding that the employer had violated the law because it had locked out its striking employees and former strikers who returned to work but not its striker replacements.  Dresser-Rand Co., 358 N.L.R.B. No.97 (Aug. 6, 2012).  The Board majority found that the lockout was discriminatorily motivated and “all of a piece, a reaction to the employees’ protected strike that ended without a resolution of the underlying disagreements. The Respondent’s failure to bargain about recall procedures and, in particular, the Respondent’s discriminatory preferential recall of the crossovers, both of which followed immediately upon the cessation of the lockout, had a pervasive impact on the unit. The Board has often similarly found after-occurring conduct and statements to shed light on motive.”