One 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.

In deciding the case, the ALJ relied on Ancor Concepts, 323 NLRB 742 (1997), in which employees struck in support of the union’s bargaining position.  After an unconditional offer to return, the employer refused to take the strikers back until settlement was reached and told employees they had been permanently replaced, thus leaving the employees with the belief they would be unable to return even if they met the employer’s demands. In Harborlite, the employer stated it would lock out employees in support of its bargaining position and begin hiring permanent replacements. Before hiring any replacements, however, the employer informed the union that any replacements hired would be temporary. Although the ALJ and Board found the first statement to be unlawful, the Board further determined that the lockout was not unlawful, concluding that the principles of Ancor Concepts did not apply to this situation. The difference between employer statements and subsequent conduct led the Board to conclude the employer acted with a legitimate objective of bringing economic pressure to support its bargaining position. 

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