We all know that an employer can lock out its employees to force a union to accept its economic demands, provided it has bargained in good faith, the contract has expired, and the requisite notices have been given under Section 8(d) of the NLRA. This is just the other side of the coin on which heads is “strike.” Right? Wrong. In Dresser-Rand Company, 358 NLRB No. 97 (Aug. 6, 2012), a majority of the NLRB decided that the employer violated the NLRA by locking out its employees despite the presence of all of the factors listed above – good faith bargaining, etc. The majority reasoned that the employer’s commission of unfair labor practices after the lockout, despite the employer’s apparent goal of achieving its bargaining demands, demonstrated that the lockout probably was motivated by union animus when the employer locked out the strikers – and some crossovers, which the majority found the employer specifically included in the lockout for fear of a finding of union animus.
There should be no mistake about the import of the decision: Chairman Pearce and Member Griffin, over the dissent of what has become Member Hayes’ one-man Greek chorus, have served notice that any lockout will be subjected to a new version of “strict scrutiny”: any employer aggressive enough to lock out its employees probably did not like the union much anyway and there must have been animus involved. Particularly with current day unions’ reluctance to strike, this probably means that protracted bargaining stalemates will be the new order, and while economic warfare is after all warfare, it is unlikely that the drafters of the Wagner Act thought that they were enabling WWI-style trench warfare in the Nation’s workplaces, and that collective bargaining agreements would be treaties of exhaustion.