That December decision in Boeing Co. overruled a longtime standard of finding apparently neutral rules unlawful if employees would “reasonably construe” them as limiting workers’ rights under the National Labor Relations Act. Instead, the board majority opted for a new standard that allows the board to consider the rights of employees as well as the legitimate interests of employers.
The July 17 decision to keep the Boeing ruling in place comes a little over one month after the labor board’s general counsel released new guidance on employer handbooks, shifting toward a presumption that ambiguous rules are lawful and don’t violate workers’ labor rights.
Painters Local Wanted Say in Boeing Case
The challenge to the Boeing ruling began in January of this year, when an International Union of Painters and Allied Trades local union, which wasn’t involved in the matter, took the unusual step of filing a motion to intervene in the case and have the board reconsider its ruling.
The Painters local had convinced the NLRB in a 2015 decision that Caesars Entertainment’s Rio All-Suites Hotel and Casino in Las Vegas maintained several unlawful rules, including prohibitions on employees taking photographs or making recordings on the company’s property. In Boeing, the board expressly overruled the Rio All-Suites decision and held that such photography and recording bans are lawful.
The Painters local argued it will now be confronted by an argument that Boeing should dictate the outcome of the Las Vegas case. Local 159 said the board violated its right to due process by improperly changing the policy on workplace rules in Boeing without allowing it to participate in the case.
That wasn’t enough to convince the NLRB’s Republican majority. Chairman John F. Ring and Members Marvin E. Kaplan and William J. Emanuel declined to allow the Painters local to intervene or to rehear the case. Democratic members
Ring, Kaplan, and Emanuel said the NLRB’s regulations don’t provide for intervention after the board has issued a decision. As to the union’s claim that their rights were affected by the board’s Boeing decision, the board said “whenever the Board issues a decision that overrules precedent and applies that decision retroactively—and retroactive application of new standards is the Board’s usual practice—it is virtually certain that live cases will be affected.”
The NLRB sometimes invites the filing of friend-of-the-court briefs before acting in significant unfair labor practice cases, but the board said it isn’t required to do so. No court “has ever denied enforcement of a Board decision overruling precedent on the ground that the Board was required to solicit prior briefing from the public and failed to do so,” the board members wrote.
The NLRB already has said that in light of its Boeing decision, it intends to reconsider some of the rules it found unlawful in Rio All-Suites. The board members said Local 159 will be free in that case “to make whatever arguments regarding Boeing it wishes to make.” If the board reaffirms Boeing in the Rio All-Suites case, the board said, the Painters can seek judicial review and use Caesars as a vehicle for placing its objections to Boeing before a federal appeals court.
NLRB attorneys represented the board’s general counsel. Perkins Coie LLP in Bellevue, Wash., represented Boeing Co. Weinberg, Roger & Rosenfeld in Alameda, Calif., represented Painters District Council 15, Local 159.
The case is Boeing Co., 2018 BL 252961, 366 N.L.R.B. No. 128, 7/17/18.
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(Updated with additional reporting throughout.)