The Language of Lockout

by Labor Management Relations Practice Group on January 25, 2012

By Denise Barton Ward

istock_locked_gatel[1].jpgOne tenet of NLRB case law is that an employer’s use of permanent replacements renders a lockout in support of its bargaining position unlawful. In Harborlite Corporation, 357 NLRB No. 151 (2011), the Administrative Law Judge relied on this principle to find a lockout in support of an employer’s bargaining position unlawful due to the employer’s statements that it would permanently replace employees. In a somewhat surprising result, the Board agreed the statements were unlawful, but concluded that the lockout itself was lawful. The Board’s separation of statements and conduct, as well as its implicit approval of the employer’s attempt to cure an errant statement, amounts to a welcome Board decision for employers.

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NLRB: Lockout Equals "Reemployed"

by Stephen D. Smith on November 29, 2011

Thumbnail image for istock_locked_gatel[1].jpgBy Stephen D. Smith

In an interesting interpretation of logic and language, a 2-1 NLRB majority decided that a company “reemployed” illegal strikers by telling them they were locked out when they attempted to return to work.  Douglas Autotech Corp., 357 NLRB No. 111 (Nov. 18, 2011).

The United Auto Workers Local 822 (UAW) represented a unit of 146 employees at Douglas Autotech’s Bronson, Michigan plant.  The UAW’s contract expired April 30, 2008, and employees struck the next day.  Within days, the UAW discovered that although it had served notice to terminate the labor contract, it had failed to file the separate notice of dispute with the Federal Mediation and Conciliation Service (FMCS). As the party initiating bargaining, the union could not lawfully strike until 30 days after the FMCS notice was filed.

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Board Highlights High Risk Associated with Lockouts

by John D. Doran on August 11, 2011

Thumbnail image for istock_locked_gatel[1].jpgA recent Board decision highlights the high risk associated with employer lockouts.

In Alden Leeds, Inc., 357 NLRB No. 20 (2011), a unanimous Board (Members Becker, Pearce and Hayes) upheld an ALJ’s finding of an unlawful lockout. The ALJ’s decision contains a clear summary of Board law regarding lockouts (while clear, the discussion may gloss over some of the more confusing parts of Board law regarding lockouts, which tends to be quite obtuse and – perhaps not surprisingly - results oriented) emphasizing, “in order for the lockout to be lawful, the union must be informed on a timely basis of the employer’s demands so that the union can evaluate whether to accept them and prevent the lockout.”

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NLRB: Employees Failing to Notify Home Health Care Employer They Were Participating in Strike Could Not Be Disciplined

by Jeffrey M. Place on July 28, 2011

strike sign2.JPGThe National Labor Relations Act (NLRA or “the Act”) requires unions representing employees in the health care industry to provide written notice to the employer ten days prior to any strike.  When a union provides the required notice, employers are permitted to poll employees to determine whether they plan to participate in the strike.  These polls, though unlawful in other industries, are allowed in the health care industry so that affected employers may make alternative staffing arrangements in order to avoid disruptions in patient care.  In Special Touch Home Care Services, Inc., 357 NLRB No. 2 (2011), the Board recently held that an employer violated the Act when it disciplined employees who responded to a lawful poll by indicating that they would work during a strike, but who then participated in the strike without providing any notice to the employer.   This decision appears to substantially undercut the effectiveness of the polling process available to employers in the health care industry.  The decision also reinforces that employers in all industries will be required to present individualized evidence of specific harms before they will be allowed to discipline employees for striking without notice.

Continue reading this blog entry on Littler's Health Care blog, www.healthcareemploymentcounsel.com