Long Island University–Brooklyn Lockout Was a First for Higher Education

By Allen Smith, J.D. Sep 15, 2016
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The Long Island University–Brooklyn's lockout of its faculty was the first one in higher education, probably for good reason: Lockouts can backfire.

The university nevertheless decided to proceed with a lockout since five of the last six contract negotiations resulted in strike votes by its faculty and one strike lasted nearly two months. Rather than wait for another strike, the campus locked out faculty and brought in a temporary teaching staff so classes could start as scheduled on Sept. 7. The lockout ended Sept. 14

Lockouts Are Rare

According to Peter List, CEO of Kulture LLC, a national labor-employment consultancy based in the Charleston, S.C., area, this type of pre-emptive lockout doesn't happen often for several reasons:

  • An employer cannot permanently replace its employees during a lockout as it can during a strike for economic reasons. Replacement workers can be used only temporarily, although there is no set time limit on "temporary."
  • More states provide unemployment compensation for locked-out employees than do states for strikers.
  • The current National Labor Relations Board (NLRB) is more prone than prior boards to rule against employers, which makes it more likely that the NLRB could rule that an employer's lockout is unlawful.

Unfair Labor Practice

"The most publicized lockouts in the past few decades are those that have taken place in Major League Baseball, professional football and hockey," said William A. Herbert, Esq., executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at City University of New York–Hunter College in New York City. "The 1994-95 baseball lockout ended only after then district court judge and now Supreme Court Justice Sonia Sotomayor issued an injunction on an application filed by the National Labor Relations Board based on a preliminary finding that the owners had engaged in an unfair labor practice."

If a lockout is tainted by an unfair labor practice, the employer will be liable for back pay for all the locked-out workers plus interest, said Kate Bronfenbrenner, director of labor education research at the Cornell University School of Industrial and Labor Relations in Ithaca, N.Y.

She said lockouts can backfire by making employers look like the "bad guy." Bronfenbrenner was particularly critical of a lockout in higher education, saying a lockout disrupts not just students and faculty but also parents; vendors; trustees; federal fund grantors; city, county and state officials; and other community members. Employers that lock out workers can feel a great deal of pressure from religious groups as well, she added.

An unfair-labor-practice charge can arise from bad-faith bargaining or if a union asked the employer a question that was not answered, she noted.

The Long Island University Faculty Federation, New York State United Teachers (NYSUT)/American Federation of Teachers Local 3998, AFL-CIO filed an unfair-labor-practice charge against Long Island University–Brooklyn on Sept. 9, alleging bad-faith bargaining.

Carl Korn, chief press officer for NYSUT, called the lockout a "highhanded tactic that's unheard of in higher education." He said, "It's shameful for an administration to lock out faculty and deprive students of an education they've paid for because of a labor dispute." A lockout "creates a chaotic situation," he added, saying, "You can't put the needs of students first if you put faculty last." 

In a Sept. 6 press release, Long Island University–Brooklyn said its goal during negotiations was to maintain a cap of 2 percent for tuition increases through 2020. In its release, the university said it hopes that once a new collective bargaining agreement is reached, as it has been, the faculty would return to teach for the remainder of the semester.

'Gutsy Move'

List called the lockout "a gutsy move," saying, "It may be a necessary one due to the issues facing the university and the union's past intransigence at the bargaining table."

Phillip Wilson, president and general counsel with the Labor Relations Institute in Broken Arrow, Okla., agreed. "Given the history of work stoppages and general disruptive activity by the faculty union, it is not surprising that the university took this approach," he said. "It really is the most responsible path, given the high likelihood that the campus would be completely disrupted at the beginning of another school year. That is not fair to the students, who pay a lot of money for an education." While some students walked out of classes to protest the lockout, he said the administration did its best to keep the school running smoothly despite the labor dispute.

Wilson added that the lockout should remind HR professionals to work hard on building positive relationships with union officials. "Many times things get to this point purely because of personality conflicts among the key parties," he said. "It is important that the key parties have positive working relationships. That doesn't mean they have to always agree—that is almost never the case—but they do have to be able to work through disagreements productively."

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