August 20, 2019

Tenth Circuit: Threat to Hire Permanent Replacements Not Enough to Invalidate Entire Lockout

The Tenth Circuit Court of Appeals issued its opinion in Teamsters Local Union No. 455 v. National Labor Relations Board on Wednesday, August 27, 2014.

Harborlite, Inc. locked out union members during a collective bargaining dispute. Harborlite threatened to hire permanent workers to replace the locked out union members, and the Teamsters brought a claim with the National Labor Relations Board. The NLRB ordered Harborlite not to make future threats of termination and to post a notice to that effect. Teamsters appealed, alleging that the NLRB should have held the entire lockout unlawful and awarded back pay.

The Tenth Circuit first addressed the Supreme Court’s recent ruling in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), and found it had jurisdiction, since the NLRB appointment at issue was made during a Senate recess that was longer than the period specified as problematic by the Court.

Turning to the merits of the appeal, the Tenth Circuit could not support the Teamsters’ contention that the lockout became unlawful when Harborlite threatened to hire permanent replacements. The threat did not cause the Teamsters to change their position, and it was not acted upon. A mere threat and nothing more was not enough to convert an otherwise legal lockout to an illegal one. The petition to review was denied.

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