Partial Lockout Ruled Unlawful

April 6, 2006 by Beeson Tayer & Bodine

A Circuit Court of Appeals has issued the conservativedominated NLRB a rare rebuke, reversing the Board’s decision that an employer lawfully locked out only those of its employees who had honored a picket line. After the union struck following stalled negotiations, 61 of 1,150 workers crossed the picket line. When the union voted to end the strike and offered to return to work unconditionally, the Company, in order to exert economic pressure on the union, instituted a lockout of only those employees who had not already returned to work. The union eventually ratified the company’s final offer but told the Company that if the NLRB eventually found that the lockout was an unfair labor practice, the contract could be void because it had been coerced. The NLRB found that the Company had not committed an unfair labor practice, concluding that the Company had legitimate business needs to lock out its employees who had honored the picket line, while permitting those who had crossed the picket line to continue working. But in Local 15, IBEW v. NLRB, 429 F.3d 651, the Seventh Circuit reversed the Board. The Court noted the Company’s failure to show a reasonable basis for finding some employees necessary to continue operations and others unnecessary, and concluded there was no proof Company for discriminating against employees by choosing to lockout only those who had engaged in protected activity by honoring the picket line before the unconditional offer to return to work. Following this decision, it will be hard for an employer to defend a partial lockout in all but the most unusual circumstances.

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