Though many employers find the National Labor Relations Board (“NLRB”) to be overly protective of employees, to its credit, the NLRB  has fulfilled its mission of enforcing the National Labor Relations Act in such a way as to maintain a reasonable balance over the past several decades.  A cornerstone concept which made that balance possible is that employers, union representatives, and employees are, with very few exceptions, free to make factual statements without fear of facing charges before the NLRB.  That cornerstone concept is now being threatened.

In the Boeing case, which is  the focus of so much media attention, one of the NLRB’s contentions is that Boeing has violated section 8(a)(1) of the National Labor Relations Act (which forbids interference, restraint, or coercion of employees engaging in rights protected by the NLRA) by threatening reprisal against union employees.  According to the NLRB, one basis for this charge is a statement made by Boeing President, Chairman, and CEO Jim McNerney about company plans to manufacture the 787 Dreamliner in South Carolina, which is a right to work state, rather than in Washington, where Boeing employees are unionized.  When explaining the reasons for this decision, McNerney said that the Company had endured strikes every three to four years in the Puget Sound area.  This is an accurate statement of fact.  McNerney did not threaten employees about the consequences of continuing to exercise their right to strike, nor did he demand any concession from union representatives.  McNerney did not even offer the enticement of suggesting that Boeing might reconsider its decision to locate in South Carolina if employees or the union would change their ways.

NLRB precedent stands overwhelmingly for the principle that McNerney had the right to explain the Dreamliner decision honestly and forthrightly.  This is particularly true here because the decision had  already been made, and McNerney was not trying to send an implied message to union representatives or employees that the Dreamliner could be manufactured in Washington if they would only be less eager to strike.  In such circumstances, no credible argument can be made that McNerney was interfering with employees’ exercise of their protected rights.  The NLRB’s willingness to disregard precedent and pursue charges against Boeing can only be regarded as a message that the long-standing balance between employers and employees and their unions may be about to change.

This obviously is a case to watch.

“Jack” Merinar is the leader of the firm’s NLRA team. He got his introduction to labor law in the early 1990’s seeking injunctions of picket line misconduct and handling arbitrations. By the mid 1990’s he was advising employers through union campaigns and elections. His experience with campaigns led Jack to develop a focus on advising employers how to avoid campaigns where possible.
» See more articles by John R. Merinar, Jr.
» Read the full biography of John R. Merinar, Jr. at Steptoe & Johnson

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