Are lockouts better than strikes?

Legal Corner

Volume 112, No. 11November, 2012

Harvey Mars, Esq.

Harvey Mars is counsel to
Local 802. Legal questions from members are welcome. E-mail them to
Harvey Mars’s previous articles in this series are archived at
(Click on “Publications & Articles” from the top menu.) Nothing
here or in previous articles should be construed as formal legal advice given in
the context of an attorney-client relationship.

Orchestral musicians face tough times
when negotiating new contracts. It takes
nerves of steel and good strategies. Here’s a legal
question that may help…

Detroit Symphony Orchestra

Musicians from the Detroit Symphony Orchestra performed on their picket line in 2010. Photo: Hart Hollman

It appears that the days of “play while
negotiating” are over for orchestral players throughout the United States.
One only has to look to Minnesota and Indianapolis to see that a new paradigm
for orchestral negotiations has emerged. Presently, orchestral management will
unflinchingly lock musicians out if they do not accede to their often
unreasonable bargaining demands.

While lockouts were once relatively uncommon
occurrences, in the last two years they have become a weapon of choice for
aggressive employers who wish to extract concessions from their employees. To
some extent these employers have been successful.

In order to end a month-long lockout, the Atlanta
Symphony’s musicians recently accepted a two-year contract that contained over
$5 million of concessions. To me, such a concessionary contract will only
embolden other orchestra managements to engage in similar tactics.

So how can this tide be turned?

One way is for musicians to understand that being
locked out may actually be an advantage and may place them in a better strategic
position than a strike. To that end, let’s review how lockouts may vary from

Very generally, a lockout is usually initiated by
an employer, while a strike is usually initiated by workers.

In a lockout, the employer is preventing workers
from coming to work and doing their jobs. In a musical setting, this may mean
that orchestra management cancels a concert – or an entire season – even
though musicians are ready and willing to work.

On the other hand, a strike means that workers
refuse to work and usually set up a picket line.

Strikes and lockouts usually occur during contract
negotiations, after the current contract has expired. In fact, many contracts
have a “no strike/no lockout” clause, so that while the contract is in
effect, the management can’t lock out the workers, and the workers agree not
to strike.

Let’s set up a scene where a strike or lockout
happens. First, imagine an orchestra that has a collective bargaining agreement
with Local 802. The agreement expires. What happens next?

There is a paperwork hurdle that must occur first,
and without it, any strike or lockout is illegal. The party who wants to
negotiate a new contract (usually the union) must first file a proper notice
under section 8(d) of the National Labor Relations Act.

This section of the NLRA provides that if a
collective bargaining agreement is in effect, the party who wishes to modify or
terminate it must notify the other party 60 days prior to the contract’s
termination date and must notify the Federal Mediation and Conciliation Service
30 days after the first notice is sent. Also, the initiating party must refrain
from a strike or lockout for 60 days after the first notice is given.

Failure to provide such notice within the required
time frames may lead to disastrous results if a strike or lockout is employed.
In the case of an illegal lockout, the NLRB would order the violating employer
to reinstate its locked out employees and pay them for all lost wages. Hence, if
management declares a lockout it always pays to check with the National
Mediation and Conciliation Service to ascertain whether they had received a
timely 8(d) notice, if the employer was the party initiating the negotiations.

The first major variance between a strike and a
lockout is that locked-out employees cannot be permanently replaced, whereas
striking employees may be. While an employer may continue its operations during
a lockout using temporary employees (scabs), it cannot fire its regular
employees. Even the threat of permanently replacing employees is an unfair labor
practice. Ancor Concepts, 323 NLRB 742 (1977). Once the lockout ends,
employees are assured that they will get their jobs back.

The same is not true for an economic strike, where
the employer has the option of terminating striking employees.

For a symphonic orchestra, this is a major
distinction. During a strike, orchestra management may hire new permanent
musicians to perform. During a lockout, orchestra management will have little
chance of obtaining high-quality temporary replacements. An orchestra lockout
effectively means no performances, hence no revenue and refunded ticket sales.
An orchestra that locks out its musicians has more to lose than one that is

Furthermore, while in many states striking
employees are not entitled to unemployment benefits, they may be entitled to
benefits if they are locked out. (Note that in New York, employees are entitled
to unemployment benefits regardless of whether they struck or were locked out.)

Additionally, recent NLRB precedent favors
locked-out employees. An August 2012 decision of the NLRB has held that an
employer’s lockout may be deemed illegal if unfair labor practices are
committed by the employer even after the lockout. Dresser-

Rand Company 358 NLRB No. 97 (2012).

In this case, the employer had improperly
terminated several locked-out employees and failed to give employees vacation
time they were entitled to receive after they returned to work.

This labor board decision raises the stakes for
employers who chose to lock out their employees. While an employer’s decision
to lock out workers may at first be legally proper, it may ultimately be held
unlawful. The potential liability that could now be imposed upon an employer who
locks out its employees may supply considerably more leverage than a strike

Finally, as a general rule the public is more
sympathetic to locked out employees. Often, the negative publicity caused by a
lockout, especially where the public is being turned away from performances they
had already paid to hear, may turn the tide in the orchestra’s favor.

These are extremely difficult times for orchestral
musicians throughout the United States. For those who are locked out, the best
result may be achievable simply by weathering the storm.

P.S. As Allegro went to press, I received notification that the Indianapolis
lockout had ended and that negotiations were successfully completed. The
conclusion of the lockout can be attributed in no small part to the resolve of
orchestral musicians throughout the country coming to their colleagues’ aid
with financial support. Such action permitted these musicians to hold fast,
proof that staying the course and preserving through a lockout will often lead
to a more positive result.