Lessons From Long Island U.’s Faculty Lockout

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Long Island University appeared to have come up with an intimidating new weapon in academic-labor disputes this month when it locked out the more than 680 instructors on its Brooklyn campus. No college in the United States had ever similarly reacted to its faculty union’s demands by barring its instructors from the campus and cutting off their pay. The campus received national media attention as students protested having to take classes from administrators or from temporary instructors whom the college had recruited over the summer.

Both sides in the labor dispute sounded victorious notes last week in reaching an interim agreement that let instructors back into their classrooms. Gayle Haynes, the university’s chief operating officer, hailed the union’s pledge not to strike during the current academic year as “providing our students the ability to continue their studies uninterrupted.” The union, the Long Island University Faculty Federation, noted that the administration had agreed to its demand for professional mediation of the contract talks.

Such academic-labor disputes are expected to become more common as new unions for adjunct instructors crop up around the nation and private universities’ graduate employees take advantage of a recent National Labor Relations Board decision ensuring their right to unionize. Will other colleges follow Long Island University’s lead in declaring lockouts? The Chronicle asked several national labor experts about the tactic. Here is how they answered key questions:

What purpose does a lockout serve?

Although generally seen as unnecessary, and used reluctantly in light of the controversy provoked by the replacement of workers, lockouts are “a legitimate employer weapon in labor disputes,” says Daniel Silverman, an adjunct professor of law at Yeshiva University and a former regional director of the National Labor Relations Board.

Jeffrey M. Hirsch, an associate dean at the University of North Carolina’s law school and a research fellow at the New York University Center for Labor and Employment Law, says “both a strike and a lockout are accomplishing the same thing: Work is being stopped. The only definitional difference is who started it.”

If a strike looms as a possibility, Mr. Hirsch says, a lockout is “a power play” that gives employers “control over the timing of the work stoppage” and lets them “inflict harm on the other side.”

Long Island University’s lockout enabled it to prepare for a work stoppage timed for the beginning of the semester, when the college was just gearing up. It headed off a potential strike later in the semester that could have disrupted grading and tests, and given the union much more leverage.

In explaining the university’s decision to declare a lockout and temporarily replace its instructors, Ms. Haynes says her institution sought to provide students “the ability to continue their studies uninterrupted.” She notes that the Brooklyn campus’s faculty union had gone on strike, essentially shutting down the campus, in five of the last six contract negotiations there. (The longest such strike lasted almost two months.) The union has accused the university of disrupting students’ education by asking them to attend classes taught by replacement workers.

Why are lockouts so rare in higher education?

Lockouts are risky for employers in any industry because they are easily challenged as illegal before the National Labor Relations Board, through unfair-labor-practice complaints very much like one the Long Island University Faculty Federation has filed against LIU.

Federal labor law prohibits private employers from declaring a lockout without first bargaining in good faith, and judgments about good-faith bargaining are subjective enough to raise doubts that an employer stands on firm ground. The NLRB requires those that lose such a challenge to reimburse their employees’ back pay, with interest, for the duration of the lockout period — a cost that comes on top of whatever they had been paying replacement workers.

“Usually, forcing the union out on a long strike has been more beneficial to the employer than a lockout,” says Kate Bronfenbrenner, direct of labor education research at Cornell University’s School of Industrial and Labor Relations.

Although lockouts are sometimes used by companies in the steel industry and other parts of the manufacturing sector, they are almost nonexistent in the service sector, where their negative effects are felt not just by workers but by customers. “They almost always backfire, and employers know not to do them,” Ms. Bronfenbrenner says.

The effects of a work stoppage at a college are immediately felt by students and their parents, provoking anger among those who had committed to that institution and doubts among those who had been considering it. Moreover, faculty members are much more like professional athletes than many service-industry workers, in that they are far too skilled, experienced, and known to the consumer to be replaced easily.

At public universities, faculty members’ labor-organizing rights are defined by state law, and, according to Governing magazine, about four out of five states have laws designed to prevent work stoppages by public-sector workers.

William A. Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, says he has been unable to find records of a faculty lockout by any American institution other than Long Island University.

Might other institutions follow Long Island University’s lead?

Peter A. Jones, who advises colleges as a labor employment lawyer at the firm Bond, Schoeneck & King, says other colleges might consider such a lockout if a faculty-union strike seems imminent.

Mr. Hirsch of the University of North Carolina says colleges might be more tempted to lock out a union representing only contingent faculty members — a population whose members already are replaced somewhat regularly — than one that includes professors who are tenured or on the tenure track.

Mr. Herbert predicts, however, that colleges will hesitate to deal so aggressively with new unions representing contingent faculty members because doing so “would substantially rupture” the developing relationship between the two sides, leading to years of distrust.

Although the full impact of Long Island University’s lockout will not be known until a new faculty contract is hammered out, what happened probably will deter, rather than encourage, lockouts elsewhere.

“They did not get the faculty to fold,” Mr. Hirsch says. “They got a lot of bad press without getting much out of it except having mad students and mad employees.”

Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.

Correction (9/20/2016, 2:43 p.m.): This article originally misstated the number of Long Island University faculty members who were locked out. It was more than 680, not more than 780. The article has been updated to reflect this correction.