Lockouts and the Use of Replacement Workers
Locking employees out is not the mirror image of a strike. It is permitted for defined purposes, tested against a motive standard the employer must satisfy, and sharply limited in how the work may be covered while it lasts.
The rule in short
An employer may withhold work to bring economic pressure in support of a legitimate bargaining position, and members of a multiemployer unit may lock out in answer to a strike against one of them. Lawfulness is judged by separating conduct inherently destructive of employee rights from conduct excused by a substantial business justification. Temporary replacements are generally permitted; permanent ones are not.
A lockout is the employer's decision to stop providing work in order to apply economic pressure. It does not discharge anyone. Locked-out workers remain employees, keep their statutory protection, and are entitled to return when it ends. The statute never mentions the tactic, so the whole of the law here is judicial and Board-made, and it is more restrictive than the law of replacement during a strike.
The standard every lockout is measured against
Conduct that is inherently destructive of employee rights can be unlawful even without proof of antiunion motive, and the employer's business justification will not save it. Conduct whose effect on employee rights is comparatively slight is lawful if the employer proves a legitimate and substantial business justification, unless the General Counsel then proves the conduct was motivated by antiunion purpose.
Almost every lockout question reduces to which side of that line the employer's arrangement falls on. Withholding work generally, from everyone in the unit, to support a position at the table sits on the permissive side. Withholding work from some employees and not others, or on terms that penalize union adherence, does not.
The lockout that answers a whipsaw
The earliest approved use was defensive. Where several employers bargain jointly through a multiemployer unit, a union that strikes one of them can pick the group apart. The Supreme Court held that the remaining members may lock out to preserve the integrity of the joint bargaining unit, and held separately that they may continue operating with temporary replacements while doing so.
The justification is structural rather than tactical: without it, multiemployer bargaining could not survive a selective strike, and the statute favors the stability of such arrangements. The permission is bounded by that rationale, so an employer outside a joint unit cannot borrow the reasoning.
The lockout that supports a position
The Supreme Court later approved a lockout used offensively, to apply pressure in support of a lawful bargaining position after negotiations had run their course. The employer there had bargained, reached deadlock, and locked out to accelerate settlement rather than to escape the union. The Court held that neither the desire to bring pressure nor the resulting harm to employees made the tactic unlawful.
Two conditions do most of the work in practice. The position being supported must itself be one the employer may lawfully insist upon, which sends the analysis straight to the division between mandatory and permissive subjects. And the bargaining that preceded the lockout must have been genuine, which sends it to the good faith standard and the law of impasse. A lockout resting on either defect fails with it.
Employers frequently attach a condition to the end of a lockout: employees may return if they abandon a demand, sign an individual agreement, or accept the last offer directly. That converts a lawful economic tactic into direct dealing and into coercion of the right to bargain collectively. The lawful message is that work resumes when the parties reach agreement, or when the employer chooses to end the lockout, and nothing about it is contingent on any individual employee's choice.
Keeping the work moving
An employer may continue operating during a lockout using supervisors, managers, employees outside the unit, and temporary replacements hired for the duration. The Board has treated the use of temporary replacements as having a comparatively slight effect on employee rights, excused by the substantial justification of continuing the business.
| Arrangement | Setting | Treatment | What the employer must show |
|---|---|---|---|
| Lockout answering a strike against one member of a joint unit | Multiemployer bargaining | Lawful | The joint unit and the selective strike against it |
| Lockout supporting a lawful position after bargaining | Single employer | Lawful | Genuine bargaining and a mandatory subject at issue |
| Temporary replacements during a lockout | Either | Generally lawful | A business justification for continuing operations |
| Permanent replacements during a lockout | Either | Not sanctioned | No justification has been accepted |
| Locking out only union adherents or one classification | Either | Unlawful | Nothing; selectivity supplies the motive |
Permanent replacement is the sharp boundary. The replacement doctrine developed for strikes rests on the employer's need to continue operating in the face of a stoppage the employees chose. A lockout is a stoppage the employer chose, so the same reasoning does not carry over, and hiring permanent replacements during one has been treated as destructive of the right to bargain collectively.
Timing, and the consequences beyond the unit
Section 8(d) forbids a lockout during the sixty-day period following a notice to terminate or modify a contract, or until the contract expires, whichever is later. Locking out inside that window is a refusal to bargain regardless of how well founded the underlying position was. Health care institutions operate on longer notice periods.
A lockout also has consequences outside the labor relationship. Production stops, delivery commitments fail, and a contractor holding a federal award will be answering to a contracting officer about schedule at the same time it is answering to a regional office about motive, which makes the excusable delay analysis behind a cure notice and the reprocurement that can follow a live concern from the first day. On the other side of the table, employees weighing a walkout instead should understand how differently the two are treated, since the replacement and reinstatement rules for an economic strike as against an unfair labor practice strike follow a separate logic entirely.
Points to carry away
- A lockout withholds work to apply economic pressure and does not end the employment relationship.
- Members of a multiemployer bargaining unit may lock out in answer to a strike against one member.
- A lockout supporting a lawful bargaining position after bargaining has run its course is permitted.
- Temporary replacements may generally be used to continue operations during a lockout.
- Permanent replacement of locked-out employees has not been sanctioned and is treated as destructive of rights.
- A lockout to compel acceptance of a permissive subject, or aimed at union supporters, is unlawful.
Questions readers ask
Can an employer lock out before bargaining has reached a deadlock?
The safe answer is no, and the accurate answer is that the requirement has never been stated as an absolute. The leading decision approving a bargaining lockout involved a genuine impasse, and Board decisions since have treated the state of negotiations as central evidence that the purpose was to support a position rather than to punish. An employer that locks out early, without having made proposals or met on request, gives the General Counsel the motive case it needs. Waiting costs little by comparison.
Do locked-out employees collect unemployment benefits?
That is a question of state law and the answers differ materially. Many states disqualify claimants whose unemployment results from a labor dispute at the workplace, and several distinguish a lockout from a strike by allowing benefits in the first case and refusing them in the second. Some look at which party caused the work stoppage. Because eligibility can shift the economics of a dispute considerably, the state agency's own rules should be checked before either side plans around an assumption.
What must happen when the employer ends the lockout?
Locked-out employees are entitled to return to their positions when the lockout ends, since they were never discharged and no permanent replacement rights attached. Temporary replacements are released. An employer that fails to reinstate promptly, that recalls selectively, or that imposes new conditions on return is exposed to a discrimination charge and to back pay running from the end of the lockout. The end of a lockout does not by itself resolve the underlying dispute, and the bargaining obligation continues unchanged.
Sources
- Cornell Legal Information Institute — 29 U.S.C. 158, Unfair labor practicesSections 8(a)(1) and 8(a)(3), and the 8(d) prohibition on a lockout during the notice period.
- Cornell Legal Information Institute — 29 U.S.C. 157, Right of employees as to organization and collective bargainingThe rights against which the effect of a lockout is measured.
- Cornell Legal Information Institute — 29 U.S.C. 152, DefinitionsThe definition of employee, which continues to cover workers idled by a labor dispute.
- Cornell Legal Information Institute — 29 U.S.C. 160, Prevention of unfair labor practicesThe complaint machinery and the injunction authority available while a dispute is live.
- eCFR — 29 CFR Part 102, Rules and Regulations, Series 8Procedure for charges arising out of a lockout, including requests for interim relief.
- National Labor Relations Board — National Labor Relations ActThe statutory text as the agency publishes it, section by section.
Lawwise is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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