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The NLRB and Boeing: The Life and Death Consequences
Posted 11.13.11
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Jonathan A. Segal
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For the first time I can recall, the NLRB is being talked about as part of the election campaign. No NLRB case is talked about more than Boeing.

In Boeing, the Company had a plant in Washington that had capacity.  Rather than using that capacity for new work, Boeing decided to build a new plant in South Carolina and do the work there.

A Boeing official talked about the risks in having a strike every 3 years as part of decision making process.  The NLRB seized upon that comment and sued Boeing for unlawful retaliation against the union for striking.

The comment by the Boeing official appears to have been take out of context.  Boeing has made clear that other factors, such as lower taxes and incentives from South Carolina, were key to its decision making process.

The law is clear that an employer cannot move work from one site to another to punish employees for exercising their right to strike.  In the Boeing case, there was no loss of work at the union plant.  It was simply a question of where to put the new work to best get it done.

Yet, the General Counsel issued a complaint against Boeing. What are the implications?

Consider the following example in health care.

A hospital has two campuses:  one union and one not.  Assume there have been strikes at the union campus.  During these strikes, there have  been struggles with the delivery of patient care.  Plus, independent of the strikes, the union facility is less productive based on objective criteria.

Assume further, the hospital has decided to build a new center to deal with pediatric cancer.  It chooses the non-union campus because it is more productive and it has had no issues with the delivery of patient care.

No work is lost at the union site.  And the union can try organize the non-union site.  But the NLRB’s “logic” in the Boeing case would suggest that the hospital may have acted unlawfully to the extent any concerns about patient care relate to potential interruptions due to a strike.

Is the NLRB suggesting that the union’s right to get new members (without any work) trumps the hospital’s right to minimize the risk to pediatric cancer patients by picking the location that is the most stable and productive?

The Boeing complaint is not only about management rights.  In health care, it can have life and death consequences.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS ESTABLISHING AN ATTORNEY CLIENT RELATIONSHIP OR AS APPLYING TO SPECIFIC FACTUAL SITUATIONS

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About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .