An employer’s decision to lock out striking and crossover workers, while allowing full-time replacement employees to work, can be found to have a discriminatory purpose in violation of the National Labor Relations Act. While an employer and union were negotiating a successor collective bargaining agreement, the union went on strike, and when it offered to return to work, the employer instituted a lockout while keeping permanent replacement employees working. The National Labor Relations Board looked at the entire circumstances surrounding the lockout, including the eventual preferential recall of non-strikers and crossovers and additional unfair labor practices committed by the employer, and held that the lockout was discriminatorily motivated in violation of Sections 8(a)(1) and (3) of the Act, relying on Midwest Generation, EME, LLC. The Board can find discriminatory intent in an employer’s action based on other alleged unfair labor practice charges.
See Dresser-Rand Co. & Iue-Cwa, Afl-Cio, Local 313, 358 N.L.R.B. No. 97 (2012); see also Midwest Generation, EME, LLC, 343 N.L.R.B. 69, 71 (2004); Michelle Amber, Unfair Labor Practices: Citing Preferences Given to Replacements NLRB Finds Dresser-Rand Lockout Was Illegal, Corporate Law Daily Highlights, Aug. 17, 2012, at D6, available at WL 3525280.
(Development authored by John Marsella)