A lockout may happen for several reasons. When only part of a trade union votes to strike, the purpose of a lockout is to put pressure on a union by reducing the number of members who are able to work. For example, if a group of the workers strike so that the work of the rest of the workers becomes impossible or less productive, the employer may declare a lockout until the workers end the strike.
Another case in which an employer may impose a lockout is to avoid slowdowns or intermittent work-stoppages. Occupation of factories has been the traditional method of response to lock-outs by the workers’ movement.
Other times, particularly in the United States, a lockout occurs when union membership rejects the company’s last and final offer at negotiations and offers to return to work under the same conditions of employment as existed under the now expired contract. In such a case, the lockout is designed to pressure the workers into accepting the terms of the company’s last offer.
The term lockin refers to the practice of physically preventing workers from leaving a workplace. In most jurisdictions this is illegal but is occasionally reported, especially in some developing countries.
In the United States, under Federal labor law, an employer may only hire temporary replacements during a lockout. In a strike, unless it is an unfair labor practice (ULP) strike, an employer may legally hire permanent replacements. Also, in many U.S. states, employees who are locked-out are eligible to receive unemployment benefits, but are not eligible for such benefits during a strike.
For the above reasons, many American employers have historically been reluctant to impose lockouts, instead attempting to provoke a strike. However, as American unions have increasingly begun to resort to slowdowns rather than strikes, lockouts have come “back in fashion” for many employers, and even as incident of strikes are on the decline, incidents of lockouts are on the rise in the U.S.
Recent notable lockout incidents have been reported in professional sports, notably involving the National Basketball Association in the 1998–99 season the National Hockey League in the 1994–95 and 2004–05 seasons.
The NLRB National Labor Relations Board has the authority to investigate and remedy unfair labor practices, which are defined in Section 8 of the Act. In broad terms, the NLRA National Labor Relations Act makes it unlawful for an employer to:
- interfere with, restrain, or coerce employees in the exercise of their rights to engage in protected concerted activity or union activities or refrain from them (concerted activity is any activity where two or more employees act in concert to protect rights provided for in the Act, whether or not a union exists),
- to dominate or interfere with the formation or administration of a labor organization
- to discriminate against employees for engaging in concerted or union activities or refraining from them,
- to discriminate against an employee for filing charges with the NLRB or taking part in any NLRB proceedings
- to refuse to bargain with the union that is the lawful representative of its employees.
The Act similarly bars unions from:
- restraining or coercing employees in the exercise of their rights or an employer in the choice of its bargaining representative
- causing an employer to discriminate against an employee,
- refusing to bargain with the employer of the employees it represents
- engaging in certain types of secondary boycotts
- requiring excessive dues
- engaging in featherbedding
- picketing for recognition for more than thirty days without petitioning for an election,
- entering into “hot cargo” agreements
- striking or picketing a health care establishment without giving the required notice.
Applying this general language to the real world requires, in the words of Supreme Court Justice Felix Frankfurter, “distinctions more nice than obvious”. The substantive law applied by the NLRB is described elsewhere under specific headings devoted to particular topics.
Not every unfair act amounts to an unfair labor practice; as an example, failing to pay an individual worker overtime pay for hours worked in excess of forty hours in a week might be a violation of the Fair Labor Standards Act, but it is unlikely to amount to an unfair labor practice as well. Similarly, a violation of a collective bargaining agreement, standing alone, may not constitute an unfair labor practice unless the employer has not only violated the contract but repudiated all or part of it.
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