Lockouts Involving Replacement Workers: An Empirical Public Policy Analysis and Proposal to Balance Economic Weapons under the NLRA

Abstract

The replacement lockout doctrine originated when unions had superior bargaining power and engaged in whipsaw strikes to pressure employers to agree to their bargaining demands. Originally, the NLRB permitted employers to lockout employees merely to synchronize with and not precipitate economic conflict.

In the 1980s, the lockout doctrine was significantly expanded, paradoxically, at a time when unions were no longer able to use their economic weapons. The specter of replacements for strikers or locked out workers certainly diminished union bargaining power. This effect was intensified as the centralized structure of bargaining, which facilitated the whipsaw strike in the 1950s and 1960s, gave way to more decentralized negotiations. This pitted more isolated unions against stronger employers.

The research in this paper examines only one employer practice that reveals the gross imbalance of competition between workers and employers. If employers are permitted to exploit this imbalance to the extent that labor markets permit, then the institution of collective bargaining is consigned to a bleak future. The potential demise of the NLRA threatens not only unions; it also raises troubling questions about what institution will mediate the widening gulf between employers who seek to maximize profits, and employees who confront fiercely competitive labor markets that compel them to work harder and longer, but for less pay and less security.

Keywords: strikes, lockouts, collective bargaining, negotiation

JEL Classification: J38, K31, L21, L52, L83