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What happens when your boss goes on strike? In a labor landscape where union membership has dwindled to record lows, the boss’s analogous form of work stoppage has ascended as capital’s weapon of choice. Time to revisit whether companies deserve “equal” rights to “down their tools,” when the tools belong to the oppressor? Ad Policy

The lockout is, essentially, a work stoppage initiated by the employer: the boss applies pressure to workers in a labor dispute by suspending operations. The power dynamics of blocking workers from their jobs, however, play out differently than a worker-led uprising. The Century Foundation (TCF) analyzed trends in labor lockouts and concluded that firms inherently wield dramatically more leverage over workers—that is, that lockouts are more damaging to workers than strikes are to employers—due to sheer volume of political and economic clout, beyond the bargaining table.

One practical legal difference between lockouts and strikes, rooted in the Depression-Era National Labor Relations Act (NLRA), is a somewhat arcane provision: striking workers may be replaced with permanent workers. But locked-out workers can only be replaced with temporary workers. This appears to be a way to balance leverage between management and workers. But in 2016, what happens when a lockout drags on indefinitely and the temporary staff becomes a de facto new workforce?

But TCF analyst Moshe Marvit argues that the modern-day lockout is far from a tit-for-tat battle, as the Supreme Court might have envisioned in 1965 when ruling that the strike and lockout represented equal “weapons of industrial warfare.” This is a false equivalence in an age when companies can often afford to make a long-term calculation to continue a lockout indefinitely, rearranging its operations to cannibalize workers, shore up its finances, and potentially use limitless access to “permatemp” non-union labor. Sure, scabs may be met with public backlash and cost more initially to recruit and train, but bosses can likely afford to milk the clock as workers eat through unemployment benefits and grow demoralized, and public attention fades.

The court’s eye-for-an-eye logic ignores that there’s a zero-sum game being played for as long as the employer can put sustained pressure on a union. And dominant corporations like ConEd or the NBA can wield massive power, virtually indefinitely, in the wider workforce and political world.

According to the NLRB’s overview of the NLRA, a company “engaged in good-faith bargaining…may lock out the represented employees,” but it is illegal when “motivated by hostility toward the union.”

But Marvit’s analysis shows that realistically, there are increasingly few situations in which unions do not suffer intrinsic vulnerabilities. Corporate headquarters can live off the fat of its profits while temps fill in for lost union labor (with the added benefit for corporations that temps’ wages and working conditions are free of union constraints). But workers will lose their economic security, and perhaps suffer harassment. Disadvantage is compounded if a powerful multinational firm serves as a community’s main source of jobs.

On principle, Marvit writes that in workplace dynamics, “the one area where workers should be in control is in the questions of whether and when to withhold their labor.” The law surrounding lockouts should be revisited and courts should contemplate a lockout’s legitimacy based on labor’s changing overall power over decisions engage in a work stoppage: “With even just the threat of a lockout in its hand, management can ensure that almost any union organizing effort would fail to gain traction.”

The power of intimidation cannot be underestimated, even if the specific lockout falls outside the direct limits established under the NLRA, which focus on whether a lockout can be considered “’inherently destructive’ of workers’ rights.” Marvit notes that often lockouts are “clustered around a few unions,” with about a third involving the Steelworkers, Teamsters and musicians’ unions; they may have everything on the line, while their transnational industries do not. Marvit says via e-mail:

[E]mployers have started to treat the lockout as their absolute right…. Part of the difficulty here is that the test for whether a lockout is illegal is somewhat untenable…if the purpose is to force concessions, or weaken the union then… I don’t see how that in itself is not a [unlawful labor practice]. LIKE THIS? GET MORE OF OUR BEST REPORTING AND ANALYSIS

There are also time factors to consider. Workers can strategically strike during peak seasons—as the Honeywell workers did when contract talks reached a tense stalemate in South Bend, IL. A boss could make a parallel decision, as when when football players locked horns with NFL higher-ups. However, there’s a long-game dynamic at play: as membership in unions as a whole has tumbled over the years, employers are using lockouts relatively enthusiastically: “In 1990, lockouts represented less than 4 percent of total work stoppages, whereas in 2015 lockouts represented over 10 percent of total work stoppages.” Over time, the overarching labor movement has withered, in a self-fulfilling prophecy as union representation continues to slide across the economy.

But there may simply be fewer jobs at stake for the company. In manufacturing, where the advent of “just in time” production and logistics chains enables companies to source products from a vast supply of extremely cheap contractors in poorer countries. Marvit notes: “This decision of who controls the timing and fact of a work stoppage revolves around power, and as labor’s power wanes, lockouts have constituted an ever greater proportion of all work stoppages.”

At least with a strike, the rank-and-file would arguably be in control of their fate because the union can call it on or off. A lockout is basically an indefinite siege that causes misery and idleness for a whole community.

Marvit concludes:

The lockout serves as a looming threat and a punishment for workers who have joined a union and engaged in meaningful collective bargaining. The employer’s right to lay off all union workers—even if only temporarily—because they engage in their rights to collectively bargain violates these workers’ core rights.

Current regulations are falsely “balanced” on the premise that strikes and lockouts are equal and opposite forces within a vacuum. In a global labor landscape, while neither workers nor firms exert complete control over the production chain, corporations can exert drastically more control over workers’ lives, on and off the job.

As one Honeywell worker said in a 2014 interview during a drawn-out Illinois lockout, “All you can do is to try to be ready for it. They taught me how to live with nothing.”