Labor Board: Locked out workers covered by labor law

BRONSON, Mich. (PAI) – In an unusual situation, the National Labor Relations Board has ruled, in a case involving a Bronson, Mich., auto parts maker, that locked-out workers are still “employees” of the company and covered by labor law.

And the board, by a 2-1 vote in November, ordered the firm, Douglas Autotech, to bring back the 146 United Auto Workers, Local 722 members Douglas said it fired via the lockout.

The case began in May 2008, through a Local 722 error: It did not file the legally required 60-day notice before the end of its prior contract, but went on strike anyway.

The union realized its mistake three days later, a mistake which also included failing to seek a mediator. The mistakes made the strike illegal, so Local 722 offered unconditionally to return to work. Douglas responded by locking the workers out.

But bargaining continued, with Douglas repeatedly saying it would return the “employees,” and it used that word, to their jobs – and let its replacement employees go – once the two sides reached a new pact. They never did. When Douglas switched law firms, its new attorney told the firm to fire the employees, three months after the strike.

The board majority said that when unions make unconditional offers to return to work to end a strike, the workers become the firm’s employees again – and employees are covered by labor law, including its protections in such circumstances.

Quoting the agency’s administrative law judge, NLRB members Mark Pearce and Craig Becker said, “When confronted with an illegal strike, an employer is vested with the full discretion to frame its response. It may choose to discharge the strikers or it may select an alternative approach.

“If it selects such an alternative, it cannot renege on that choice. By selecting an alternative, the strike has ended and the strikers have regained the protective mantle of the” National Labor Relations Act. “Any subsequent unlawfully motivated discharge will violate the law,” Pearce and Becker said.

“The judge stated that, insofar as the above principles are concerned, he could perceive no difference between an employer’s selection of a settlement agreement or its invocation of the economic weapon represented by a lockout. In either case, the judge stated, the strike has ended and former strikers are again under the act’s protection.”

The board’s sole Republican, Brian Hayes, disagreed. He said that lockout or no lockout they’re fired. “The lockout was not somehow transformed into an affirmative act of ‘reemployment,'” he said. Strikers are re-employed “only on their actual return.”