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I N DEALING with bargaining lockouts under the LMRA, I will, with respect, be critical of what the NLRB has said and done and of what it has left unsaid. This contentious approach to a weapon of contention would at any time be a doubtful basis for an after-dinner talk. It may seem particularly ungracious right now; for there is increasing concern about the overt use of pressure in collective bargaining and increasing discussion of proposals for reducing such pressures. I am somewhat uncomfortable about examining rules of war in the face of this widespread preoccupation with the more amiable subject of promoting peace. I am also troubled because the apple of discord into which I am to bite has been well chewed in the law reviews.1 I am tempted to put all the blame on our Chairman for my troubles, but I am in the dock with him. He at least in mitigation can plead a benevolent purpose, that is, saving me from thinking. He tactfully hinted at that purpose when he invited me to present the substance of an article I wrote in 1956.2 But our plan for after-dinner featherbedding ran into a familiar obstacle. That area of journalism called labor law has not stood still, and I will compress my earlier observations in order to deal with more recent developments. These developments have not shaken my opinion that the Board's basic approach to lockouts is erroneous; they have, moreover, reenforced my conviction that that approach breeds unreal and unworkable distinctions, which impose unmanageable burdens on the Board and the courts. The Board has distinguished between three types of lockouts which arise in the bargaining context: the first I will call the bargaining lockout-that is, a shutdown initiated by an employer in order to break a bargaining impasse in circumstances where, apart from the lockout, the employer's conduct is blameless. The Board has in general condemned such lockouts.3 The Supreme Court has, however, not squarely ruled on this point, despite a generation of litiga-
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