Company’s Lockout of Union Members Lawful When Bargaining Both Mandatory and Permissive Subjects

The United Steel Workers (USW) went on strike at an aluminum oxide plant after its collective bargaining agreement expired. Management responded with a “last, best and final” proposal to end the dispute. The workers rejected this contract proposal prompting the company to begin a lockout of bargaining unit employees the next day.

A company can initiate a lockout, which is a temporary work stoppage, during a labor dispute. Companies often use the lockout as a tactic to encourage the union to accept the proposals set forth by the company. Lockouts are riddled with landmines that can easily result in unsuspecting companies unlawfully locking out their employees. Extreme caution and proper legal counsel is prudent before a lockout.

The USW alleged that this lockout was unlawful because the company locked out the employees based on permissive rather than mandatory subjects of bargaining. The parties had engaged in bargaining about retiree health insurance, a permissive subject, which the company included in its proposal along with several mandatory bargaining subjects. The NLRB regional director concluded that just because a party is engaged in a lockout does not mean that the party has conditioned its willingness to enter into an agreement on acceptance of all of its proposals. Here, the company continually indicated that it was looking for an overall agreement and never expressly predicated reaching an agreement on its retiree benefit demands. Based on this, the lockout was lawful.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at