The saga continues with regards to the status of a December 2017 NLRB decision that loosened restrictions on employer workplace rules. As we reported, on December 14, 2017, the NLRB overruled the “reasonably construe” standard for evaluating the validity of employer work rules and replaced it with an evaluation that balances 1) the nature and extent of a rule’s impact on NLRA rights and 2) an employer’s legitimate justifications for the rule. The new standard is widely-perceived as a victory for employers and indicated the newly-composed NLRB’s intent to revise the law in situations where the previous administration had stretched key legal principles too far, turning the “reasonably construe” standard into a “possibly construe” standard.

In January 2018, however, Local 159 of the International Union of Painters and Allied Trades filed a motion to intervene in Boeing Co. and requested the NLRB to reconsider its December decision. The Union claims in its motion that Member Emanuel (who voted with the majority in the Boeing Co. decision) had immediately before his appointment been a member of a law firm that represented Boeing Co. in multiple other cases. The Union makes the novel argument that this alone disqualified him from participating in the Boeing Co. decision. With the intervention motion still pending, the Union subsequently filed additional motions seeking the recusal of the remaining Republican Board Members: Chairman Ring and Member Kaplan. The Union argued that all Republican Board Members should be disqualified due to an alleged bias purportedly disclosed in an April NLRB press release stating that the agency “protects employers and employees”, but did not include unions; and that additionally, Chairman Ring should be disqualified given that his previous firm also represented Boeing Co. in the past.

Characterizing the Union’s filings as “frivolous” and a waste of time, Boeing responded that the Union’s motions are premature due to its proposed intervenor status and that the motions are untimely given that they came after the decision was issued. As to the merits, Boeing responded that there is no basis for the bias allegations arising from the April press release and that Chairman Ring’s previous firm was not involved in the Boeing Co. case nor did he represent Boeing at his previous firm. In a previous opposition brief, Boeing also argued that there is no evidence that either Member Emanuel or his previous firm were involved in the Boeing Co. case.

Although the Boeing Co. decision came as a welcome signal for employers, this update serves as a reminder that these changes will likely be vigorously opposed, which will for a time create uncertainties as the legal process goes forward. For now, we expect the NLRB General Counsel to enforce the law as stated in Boeing Co., but management should stay tuned for developments on this and other areas as the newly-composed Board continues to re-visit Obama-era decisions.