St. Mary's Law Journal


Congress enacted the National Labor Relations Act (NLRA) to offset employers’ superior power in collective bargaining with the utilization of strikes and other forms of economic pressure by employees. The Act addresses the balance between the policy prohibiting management from reprimanding its employees for applying economic pressure, and the policy allowing an employer to protect its economic interests for legitimate business reasons. Although the courts have traditionally prohibited certain forms of economic pressure, recent cases have expanded employers’ ability to utilize economic pressure. It is apparent that the extent to which an employer can use lockouts and permanent replacements is currently an important and unresolved issue affecting the balance of economic power in labor relations.   Pursuant to the NLRA, an employer may temporarily replace an employee participating in an offensive bargaining lockout. However, the question remains as to whether the employer may permanently replace the locked-out employee. Under Mackay, an employer may hire permanent replacements but only to the extent that the replaced employee engaged in an economic strike. Furthermore, the Great Dane balancing test weighs heavily against permitting an employer to permanently replace an employee in an offensive bargaining lockout. Consequently, the Supreme Court should rule on the question it reserved in American Ship and apply the Great Dane tenets regarding lockouts and permanent replacements. Clarification in this regard of labor disputes would provide a more stable environment and facilitate collective bargaining between management and union.


St. Mary's University School of Law