Lockouts

Often, when people say workers are on strike, they are actually being locked out by their employer. Lockouts have become a distressingly common way for employers to bust unions. Moshe Marvit has a compelling essay arguing that the courts should rein how corporations are able to use lockouts. He notes that the lockout was actually something largely created by judges and therefore the courts are the best method to fight this problem today. The original version of the National Labor Relations Act prohibited lockouts, but the language was removed in committee. Marvit then details how the courts have expanded the lockout’s use over the years. Finally, his conclusion:

On May 31, 2016, the NLRB released an important decision that limited the employer’s use of replacement workers during a strike.44 The Board held that the employer’s motivation in hiring replacement workers is important, and if the decision is made to discourage union membership, then the use of replacement strikers is a violation of the Act. Harvard Law Professor Ben Sachs argued that the decision brought “some sanity” to the use of replacement strikers because it addressed the long-standing tension in the law where workers may not be fired for striking, but they may be permanently replaced.45 It is time for the NLRB to similarly bring some sanity to the use of lockouts and temporary replacement workers.

Lockouts are highly disruptive of workers’ lives and they impact one of labor’s greatest strengths: its ability to strike. The lockout serves as a looming threat and a punishment for workers who have joined a union and engaged in meaningful collective bargaining. The employer’s right to lay off all union workers—even if only temporarily—because they engage in their rights to collectively bargain violates these workers’ core rights.

As labor lockouts continue to rise as a percentage of work stoppages, the National Labor Relations Board should reconsider its position that lockouts do not have much impact. In following the Supreme Court’s direction, the NLRB should investigate whether the lockout has had on a “slight effect on employee rights.”

If one walks the picket line in a lockout, one can easily conclude that the effects on workers’ rights are significant. The balance of power is already greatly tilted towards employers, and the right to withhold labor should belong solely to workers. Putting this power to stop work primarily back in the hands of workers is one step toward leveling the playing field of labor.

Assuming a Hillary Clinton victory in November and the Democrats retaking the Senate, the courts are rapidly becoming dominated by Democratic-appointed justices. It’s time to start filing cases against these lockouts and seek to roll back some of the legal framework to even the playing field between employers and workers.