In a letter to United Steelworkers Union’s (“USW”) in-house counsel, National Labor Relations Board (“NLRB”) General Counsel Richard Griffin (“Mr. Griffin”) stated that a company did not violate federal labor law by locking out approximately 450 USW-represented employees during ongoing collective bargaining negotiations.

The lockout, which began in October 2014, occurred after bargaining unit employees rejected the company’s demands for cuts to pensions and healthcare benefits and reductions in overtime pay.  The union petitioned an NLRB regional director to issue a complaint against the company over the lockout.  The regional director rejected the petition finding the lockout and hiring of temporary replacement workers lawful under the National Labor Relations Act.  In his letter, Mr. Griffin agreed with the regional director’s conclusion that the company acted lawfully.

Specifically, Mr. Griffin confirmed that the company did not improperly insist on a permissive subject of bargaining (i.e., retiree healthcare) in order to end the lockout.  Rather, the company lawfully told USW that it would end the lockout when the parties reached a new agreement.  According to Mr. Griffin’s letter, the last, best and final offers proposed to the union were not “take it or leave it” proposals.  Although the only difference between the two last, best and final offers included the permissive subject, the company and the union engaged in additional bargaining since the company’s “last” offers, and the company had changed its proposal as to the alleged permissive subject.  In that regard, the parties had not bargained to an impasse, and the company did not impose the lockout in order to compel the union’s acceptance of its “last offer” and to evade its duty to bargain in good faith.

Mr. Griffin also agreed with the regional director’s determination that the company did not fail to inform the union as to the reason for the lockout, thereby rendering the lockout unlawful.  The company informed its employees and the union that it initiated the lockout due to a “lack of progress in negotiations and in achieving a new collective bargaining agreement.”  The company also lawfully and sufficiently advised the union that the lockout would end when the parties reach a new collective bargaining agreement, “which could or could not have included permissive subjects depending on continued contract negotiations.”  The company did not condition agreement on any proposal in order to end the lockout; instead, it permissibly made clear that the lockout would end when the parties reach a new agreement.