Kapi‘olani’s lockout of nurses is rare use of ‘nuclear’ option in labor fights

It's uncertain when or how the lockout of roughly 600 nurses at Kapi 'olani Medical Center for Women &Children will be resolved, but it may be remembered as a historic clash between unionized labor and management in Hawaii.

Eight days ago, the hospital refused to allow its nurses back to work after they held a one-day strike Sept. 13 that followed a weeklong strike in January. In doing so, leaders of the hospital run by the nonprofit Hawaii Pacific Health deployed a tactic that possibly had not been used in the state for nearly 30 years.

Lockouts also were pretty rare last year nationally, according to a recent study that said only two out of 347 U.S. work stoppages involving unionized labor in 2023 were lockouts.

Strikes and lockouts are sometimes described as opposing "nuclear " options for trying to gain leverage over collective bargaining contracts. As such, most contract disputes get resolved without deploying either.

"The vast majority of contracts are negotiated successfully without resorting to strikes or lockouts, " said Leslie Lopez of the University of Hawaii West Oahu Center for Labor Education and Research.

Lockouts, however, are far less common than strikes.

The Center for Labor Education and Research has documented four lockouts in Hawaii since 1948, while at least four strikes have occurred in the state since 2023, including the Kapi 'olani action, one involving therapists at Kaiser and others at Hawaii Gas and the Ilikai Hotel.

According to a search of news reports for lockouts in Hawaii, the most recent one appears to have been in 1996 when a Utah-based owner of the Kauai Resort Hotel locked out 105 employees represented by the International Longshore and Warehouse Union.

In that case, the hotel was struggling financially and negotiations over a new contract that had expired about seven months earlier included a 17 percentage-point divide over wages. The Kauai Resort lockout lasted nearly five months, and the hotel closed a year later.

The biggest lockout of unionized labor in Hawaii roiled the construction industry in 1984, and involved workers represented by multiple unions in different trades who were locked out by numerous companies amid strikes by workers at some companies but not others subject to the same labor contract negotiations.

Such "whipsaw " strikes are a strategy to gain leverage in labor negotiations by creating risk that companies targeted by strikes will lose immediate and future business to competitors where workers are not striking.

One countermove to whipsaw strikes is for competing companies bound by shared labor contracts to lock out workers, though it can be divisive because of economic losses.

The biggest union involved in the 1984 construction industry strife was the 3, 000-member Hawaii Carpenters Union, where members walked off select jobs statewide. In response, the General Contractors Association of Hawaii called on its construction company members to lock out all workers.

Similarly, about 600 electricians represented by the International Brotherhood of Electrical Workers were on strike against select contractors. That prompted the Pacific Electrical Contractors Association bargaining for about 90 companies to call for its members to lock out workers. About 25 companies refused, leading the association to seek a court order to force lockouts. A federal judge declined to issue such an order.

The lockouts affecting carpenters and electrical workers lasted 16 weeks. There was also a 12-week lockout around the same time by two concrete companies after a strike by members of the Hawaii Teamsters union was instituted at a third concrete company.

A 1948 lockout was along the same line. In that case, 35 employees of one electrical contractor held a strike that lasted 69 days, while eight other electrical contractors subject to the same labor contract negotiations locked out workers.

Lockouts outside Hawaii have been numerous, and some have affected Hawaii businesses and consumers, including a 2002 lockout of West Coast dockworkers that disturbed the flow of goods shipped to the state.

Several high-profile national lockouts in recent decades happened to players in professional sports, including football, baseball and basketball.

In one instance in 2004, locked out employees of the Sheraton Palace Hotel in San Francisco picketed employee entrances of the Sheraton Waikiki and Royal Hawaiian hotels after the two Hawaii hotels sent managers and nonunion employees to temporarily work at the Palace.

The Palace was one of 14 San Francisco hotels that had locked out employees in response to a two-week strike at four hotels.

Typically, to implement a strike or lockout requires that contract negotiations be at an impasse.

In the instance of a strike, an employer has the right to hire a permanent replacement workforce. But during a lockout, an employer may hire only temporary replacement workers.

Whether unemployment benefits are available in Hawaii to employees who strike or are locked out depends on whether the employer's operations are substantially stopped. If an employer substantially continues operations with other workers, then unemployment benefits are allowed under Hawaii law.

A 2016 report by The Century Foundation, a New York-based progressive think tank, said the average duration of U.S. work stoppages triggered by employees or employers between 2010 and 2014 was about 35 days for strikes and 147 days for lockouts.

The report described locked-out workers as being in an unsettling position because the employer is the one trying to apply leverage.

"Without recourse to withholding their labor as an economic weapon, the workers have to play a waiting game, " the report said. "They wait for the company to decide that replacements and labor uncertainty are not economically feasible ; they wait for the public to rally behind them and declare that locking out a worker is wrong ; and they wait for the National Labor Relations Board (NLRB ) to hopefully issue a complaint alleging that the lockout is illegal."

Nurses at Kapi 'olani allege that the hospital's lockout is illegal retaliation for complaining about staffing levels. Hospital officials say the lockout was in response to the strike.

The Century Foundation report from 2016 said the preceding few decades had seen a big decrease in strikes and only a slight decrease in lockouts nationally, reflecting a general decline in the power of organized labor.

More recently though, a study last year by Bloom ­berg Law found that 347 union-related work stoppages nationally in 2023 represented the most in any year over the last two decades, and that only two of those actions were lockouts.

The Bloomberg Law report considered nine of the stoppages to be strikes where lockouts were triggered by strikes but limited to a certain number of days, often to cover weeklong temporary worker assignments.

The report said lockouts typically accounted for 3 % to 5 % of all stoppages since 1990, and was highest in 2011 at 10 %. The 2023 total represented 0.6 %.

"When it comes to calling work stoppages, management barely bothered in 2023, " the Bloomberg Law report said.