Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
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.”
The main point of contention during negotiations was the cost of health insurance. The employer was participating in the union’s health insurance plan, which was expecting premium increases of almost 50%. The employer proposed several alternatives, but did not prior to the lockout specifically articulate which of its proposals the union could accept to avoid the lockout. As a result, the ALJ concluded the employer failed to satisfy its “obligation to present to the Union and its employees a timely and complete offer so that they can make an informed decision whether to accept it and avoid the lockout.” After the lockout had commenced, the employer did present in writing a very clear proposal, but the ALJ concluded a lockout “unlawful at its inception, retains its initial taint of illegality until it is terminated and the affected employees are made whole.” The employer was ordered to reinstate all employees locked out and make them whole for any losses of pay and benefits they may have suffered due to the lockout, with interest.
While lockouts in professional sports are the trend of the day, they do carry significant risks. Many employers have asked – “if the union can strike whenever it wants, why can’t we lock them out whenever we want?” – an excellent question to which there is unfortunately no better answer than “because that’s the way it is.”