American Ship Building An “offensive” lockout is initiated by the employer in order to put economic pressure on the union during negotiations An “offensive lockout” not a per se violation of 8(a)(1)-(3) no discrimination - all ees locked out counter - ees could work if they were not engaged in CB no intent to discourage union activity no interference with right to strike effects timing, not occurrence of work stoppage Board may not take away a weapon from a party based on “bargaining power,” per se

Lockouts and Replacements Permanent replacements always unlawful Temporary Replacements defensive lockout - lawful offensive lockout - lawful where there is no antiunion animus 8th Cir. (Intercollegiate Press, 1973) Board Harter Equipment, 1986 CII Carbon, LLC, 2000 Legality of permanent subcontracting during a lockout unclear Bd- illegal DC Cir., legal if first addressed in bargaining

Impasse Irreconcilable differences after good faith negotiations Parties may use protected economic weapons at impasse Strikes and Lockouts Replacements Employer may implement final pre-impasse proposal Rationale: to create movement in bargaining