The Boeing Company

National Labor Relations Board - Board Decisions

Jul 17, 2018

366 NLRB No. 128 (N.L.R.B. 2018)

366 NLRB No. 128
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
The Boeing Company and Society of Professional En-
gineering Employees in Aerospace, IFPTE Local
2001. Cases 19–CA–090932, 19–CA–090948, and
19–CA–095926
July 17, 2018
ORDER DENYING MOTION
BY CHAIRMAN RING AND MEMBERS PEARCE,
MCFERRAN, KAPLAN, AND EMANUEL
On January 10, 2018, the International Union of Paint-
ers and Allied Trades, District Council 15, Local 159,
AFL–CIO (Local 159), which is not a party to this pro-
ceeding, filed a motion to intervene and for reconsidera-
tion of the Board’s decision issued on December 14,
2017, reported at 365 NLRB No. 154 (hereinafter Boe-
ing). Thereafter, Respondent Boeing Company filed an
opposition to the motions, and Local 159 filed a reply.
For the reasons that follow, the motion to intervene is
denied, and the motion for reconsideration is dismissed
as moot. 1

1 On April 17, 2018, Local 159 filed a motion requesting that
Chairman Ring recuse himself from participating in this case. The
Chairman, in consultation with the Board’s Designated Agency Ethics
Official, has determined not to recuse himself. Under paragraph 6 of
the Trump Ethics Pledge, which Chairman Ring has signed pursuant to
Executive Order 13770, the Chairman, for the first 2 years of his term,
may not participate in cases in which his former firm represents a party
or in which one of his former clients is or represents a party. Boeing is
not the Chairman’s former client, and his former firm does not repre-
sent any party to this case. In addition, no person with whom Chairman
Ring has a covered relationship within the meaning of 5 CFR §
2635.502 is or represents a party to this case, nor does Chairman Ring
believe that his participation would “cause a reasonable person with
knowledge of the relevant facts to question his impartiality,” id.
In its pending motion to intervene, Local 159 argues, among other
things, that Member Emanuel recuse himself from participating in this
case because of his former affiliation with the law firm of Littler Men-
delson. Member Emanuel, in consultation with the Board’s Designated
Agency Ethics Official (DAEO), has determined not to recuse himself.
Under paragraph 6 of the Trump Ethics Pledge, which Member Eman-
uel has signed as required by Executive Order 13770, Member Emanu-
el may not participate for the first 2 years of his term in cases in which
his former firm, Littler Mendelson, represents a party, or in which one
of his former clients is or represents a party. Boeing is not Member
Emanuel’s former client, and Littler Mendelson does not represent any
party to this case. In addition, no person with whom Member Emanuel
has a covered relationship within the meaning of 5 CFR § 2635.502 is
or represents a party to this case, nor does Member Emanuel believe
that his participation would “cause a reasonable person with knowledge
of the relevant facts to question his impartiality.” Id.
On April 24, 2018, Local 159 filed a motion requesting that Chair-
man Ring and Members Emanuel and Kaplan “immediately cease
deciding any Board cases including this case.” The request is denied.
Local 159 is the charging party in Caesars Entertain-
ment d/b/a Rio All-Suites Hotel and Casino, 28–CA–
060841. In its August 27, 2015 decision in that case,
reported at 362 NLRB No. 190 (hereinafter Rio All-
Suites), the Board found, among other things, that the
respondent violated Section 8(a)(1) of the Act by main-
taining several workplace rules, including two conduct
standards stating, in relevant part, that “[c]amera phones
may not be used to take photos on property without per-
mission from a Director or above,” and “[c]ameras, any
type of audio visual recording equipment and/or record-
ing devices may not be used unless specifically author-
ized for business purposes (e.g. events).” In so finding,
the Board applied the “reasonably construe” standard set
forth in Lutheran Heritage Village-Livonia, 343 NLRB
646, 647 (2004), under which an employer would be
found to have violated Section 8(a)(1) of the Act by
maintaining a workplace rule that employees would rea-
sonably construe to prohibit the exercise of Section 7
rights. On May 11, 2017, the Board filed an application
for enforcement of its order in Rio All-Suites with the
United States Court of Appeals for the Ninth Circuit.
Local 159 moved to intervene, and the Ninth Circuit
granted the motion.
On December 14, 2017, while Rio All-Suites was
pending in the Ninth Circuit, the Board issued a decision
in this case, in which, among other things, it (i) overruled
Lutheran Heritage’s “reasonably construe” standard, (ii)
designated rules that may be lawfully maintained as “cat-
egory 1” rules, (iii) held that rules restricting the use of
cameras or camera-enabled devices belong in category 1,
and (iv) overruled Rio All-Suites to the extent the Board
had found the maintenance of the above no-camera rules
unlawful. After Boeing issued, the Board filed a motion
with the Ninth Circuit to remand the workplace-rules
findings in Rio All-Suites for reconsideration in light of
Boeing. Local 159 filed an opposition to the Board’s
remand motion. On April 24, 2018, the Ninth Circuit
granted the Board’s motion and remanded Rio All-Suites.
In the instant motion, Local 159 moves to intervene in
this case “for the purpose of seeking Reconsideration of
[Boeing].” Local 159 states that it “do[es] not concede”
that Boeing “effectively vacates” Rio All-Suites, but it
contends that the respondent in Rio All-Suites will argue
as much and that Boeing “may have that impact.” Local
159 contends that Boeing “was issued without due pro-
cess to” Local 159 because it did not have prior notice
that the Board would issue a decision in Boeing that “af-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
fects [Local 159’s] rights.” Local 159 cites no authority
for the proposition that it has been denied due process.2
First, the Board’s rules do not provide for intervention
under the circumstances presented here. Section 102.29
of the Board’s Rules and Regulations states, in relevant
part, as follows:
Any person desiring to intervene in any proceeding
must file a motion in writing or, if made at the hearing,
may move orally on the record, stating the grounds up-
on which such person claims an interest. Prior to the
hearing, such a motion must be filed with the Regional
Director issuing the complaint; during the hearing, such
motion must be made to the Administrative Law Judge.
Under Section 102.29, a “person desiring to intervene” may
do so before the hearing begins or while the hearing is in
progress. The Board’s rules do not otherwise permit inter-
vention. No provision is made in the Board’s rules for in-
tervention after the close of the hearing, let alone after the
Board has issued its decision, as Local 159 seeks here. 3

2 Local 159 references 5 U.S.C. § 554. That section of the Adminis-
trative Procedure Act relevantly states that “[p]ersons entitled to notice
of an agency hearing” must timely receive certain information, but §
554 does not set forth criteria for deciding the issue here, i.e., whether
Local 159 was entitled to such notice in Boeing. Local 159 also broad-
ly refers to “Board Rules of Procedure” without citing any specific rule
or rules, and “the Due Process Clause of the U.S. Constitution.”
3 See also United States Postal Service, 05–CA–122166, 2015 WL
3932157 (June 25, 2015) (denying motion to intervene filed after issu-
ance of Board’s decision as untimely under Sec. 102.29, among other
reasons). We recognize that, in rare instances, the Board has permitted
posthearing intervention. We need not address those decisions here,
given that intervention is unwarranted on multiple grounds in addition
to Sec. 102.29. Notably, however, the dissent cites no case in which
the Board has ever permitted posthearing intervention by an entity that
asserts interests it can fully protect in another pending case in which it
is already a party—here, Rio All-Suites. In the cases cited by the dis-
sent where the Board has allowed posthearing intervention, the fact that
the would-be intervenor possessed an interest that could only be pro-
tected by granting intervention was apparent. See Drukker Communi-
cations, 299 NLRB 856 (1990) (permitting posthearing intervention by
entity that had purchased the respondent’s assets and was therefore
exposed to potential successor liability); Premier Cablevision, 293
NLRB 931 (1989) (same); Postal Service, 275 NLRB 360 (1985) (per-
mitting posthearing intervention by national union, where respondent
claimed that national union and not charging party local union repre-
sented the bargaining unit); William Penn Broadcasting Company, 94
NLRB 1175 (1951) (permitting posthearing intervention by union #2,
with which respondent had entered into a renewal collective-bargaining
agreement at a time when a representation petition filed by charging
party union #1 was pending before the Board). To extend these cases
to the situation presented here, where Local 159 claims an interest it
can protect in another pending case, would create a precedent for
posthearing intervention whenever a would-be intervenor simply claims
an interest implicated in the case. If that were the law, there would be
no finality to any decision; the Board would be continually revisiting its
decisions on motions to intervene and for reconsideration filed by
strangers to the case claiming an implicated interest. It serves no pur-
pose and certainly does not advance the fundamental purpose of the
Second, whenever the Board issues a decision that
overrules precedent and applies that decision retroactive-
ly—and retroactive application of new standards is the
Board’s usual practice4—it is virtually certain that live
cases will be affected.5 Absent rulemaking, the only way
to ensure that parties in such cases have a prior oppor-
tunity to be heard would be to issue a notice and invita-
tion to file briefs. The Board often does so, but far from
always;6 it has never held that it must do so; and no court
has ever denied enforcement of a Board decision overrul-
ing precedent on the ground that the Board was required
to solicit prior briefing from the public and failed to do
so.
Third, even if Local 159 would otherwise have a right
to be heard in this case on Boeing’s overruling of Rio
All-Suites, Local 159 sacrificed that right when it op-
posed the Board’s motion in the Ninth Circuit to remand
Rio All-Suites. Obviously, Local 159 would have an
opportunity in Rio All-Suites—a case in which it is al-
ready a party—to claim that its due-process rights were
violated by the Board’s decision in Boeing. By opposing
the Board’s motion to remand Rio All-Suites, Local 159

NLRA—to promote industrial peace—to keep workplace disputes
unresolved while everybody and his uncle with a claimed “interest”
lines up to reargue cases that have already been decided. Although the
dissent believes this concern is misplaced, the fact remains that if the
Board permitted intervention here, it would be the first time that
posthearing intervention was allowed where the moving party was fully
capable of protecting its interests in a pending case to which it was
already a party. Litigants would predictably seek to exploit such a
precedent. Even if unsuccessful, their motions would waste the
Board’s time and resources.
At the same time, we cannot agree with the dissent’s approach to in-
terpreting the Board’s Rules. In the dissent’s apparent view, if a rule
provides that a party may take a specific action at a specific time, par-
ties are free to take that action at other times as well unless the rule
explicitly states otherwise. Such a view would turn the Board’s Rules
and Regulations into Suggestions and Recommendations. In our view,
a rule that designates a specific time when X may be done necessarily
implies that X may not be done at other times. Of course, rules of
procedure typically provide avenues for requesting permission to take
actions out of time—see, e.g., Board Rules and Regulations Sec.
102.2(d)—but such procedures only confirm the prohibitive force of the
underlying rule, i.e., that absent permission, parties may not act out of
time.
4 See, e.g., Purple Communications, Inc., 361 NLRB 1050, 1065–
1066 (2014); SNE Enterprises, 344 NLRB 673, 673 (2005).
5 The dissent claims there is a “clear distinction” between live cases
pending before a court of appeals and live cases pending before the
Board, on the basis that in the latter, parties “will be able to argue about
how the new principle should apply to the particular facts of their cas-
es.” But where the allegation in a pending case squarely relies on the
overruled precedent, retroactive overruling is usually dispositive, leav-
ing nothing to argue about.
6 See, e.g., PCC Structurals, Inc., 365 NLRB No. 160, slip op. at
11–12 (2017) (citing six cases decided over the course of 3 years—
2014–2016—that overruled precedent without prior notice to the public
and an invitation to file briefs).
BOEING CO. 3
sought to deny itself the very opportunity it seeks here.
Local 159 cannot now be heard to argue that the Board
must permit it to intervene in this case on due process
grounds, after having opposed the very remand that
would have given it the opportunity to make its argu-
ments—including its due-process argument—in the case
in which it is already a party, Rio All-Suites. 7
Finally, despite Local 159’s opposition to the Board’s
remand motion, the Ninth Circuit granted that motion
and remanded Rio All-Suites to the Board. With Rio All-
Suites pending again before the Board, Local 159 will
have the very opportunity in that case that it seeks in this
case by its motion to intervene: the opportunity to make
whatever arguments regarding Boeing it wishes to make,
including that the Board erred when it designated all no-
camera rules as Category 1 rules and thus always lawful,
or that the Board should reconsider the system of catego-
ries adopted in Boeing, or that it should scrap Boeing
altogether and either start over or reinstitute the “reason-
ably construe” test of Lutheran Heritage.8 In other

7 The dissent characterizes this rationale as “nonsense,” but in our
view the dissent simply does not like the sense it makes. Now that Rio
All-Suites has been remanded, allowing intervention here would merely
permit Local 159 to present its arguments about Boeing in two cases
instead of one. One will suffice. Indeed, the dissent makes form-over-
substance due-process claims that are concocted from form-over-
substance due-process deficiency allegations. The dissent alleges that
because the decision in this case expressly stated that Rio All-Suites
was overruled—a truism, given that Boeing placed all no-camera rules
in category 1—this case is like no other where the Board has over-
turned precedent without seeking briefing prior to applying a new hold-
ing retroactively. To fix this pretend due-process problem, the dissent
says due process requires that Local 159 be permitted to argue its case
here, in the first instance, as opposed to in its own case, Rio All-Suites,
on its own record evidence. Whether here or there, Local 159 will be
making its arguments to the same Board, and whether here or there,
Local 159 will be attempting to persuade the Board to revisit Boeing, or
at least to reconsider whether applying it retroactively to Rio All-Suites
would work a manifest injustice. We think it makes more sense, and
better protects the finality interests of the parties in this case, to allow
Local 159 to argue its case in the context of the facts of its own case.
Moreover, considering the regularity with which Board precedent
changes when Board majorities change, and the multitude of precedent-
changing decisions issued over the past several years by the Board’s
erstwhile majority, the dissent’s suggestion that Local 159 is disadvan-
taged in making its Boeing-related arguments in Rio All-Suites instead
of Boeing because of “the doctrine of stare decisis” is singularly unper-
suasive.
8 Local 159 will also have the opportunity to argue that because Rio
All-Suites was pending in the Ninth Circuit when Boeing issued, the
Board lacked jurisdiction to overrule it—an argument the dissent re-
peatedly hints at but never actually makes. Instead, the dissent states
the unremarkable proposition that the Board lacks jurisdiction to recon-
sider a case that is pending in a court of appeals, and implies a lack of
jurisdiction to overrule such a case. The dissent cites no authority for
this proposition, and we are aware of none. Indeed, if the dissent’s
suggestion were correct, then the Court of Appeals for the D.C. Circuit
would not have remanded Browning-Ferris in the wake of the Board’s
first decision in Hy-Brand, which overruled Browning-Ferris. See Hy-
words, Local 159 will have the opportunity to urge the
Board to reconsider Boeing and reinstate Rio All-Suites,
which makes it pointless to permit Local 159 to intervene
in this case in order to urge the very same thing. If Local
159 were to do so, and if the Board were to reaffirm Boe-
ing on remand in Rio All-Suites,9 Local 159 would be
able to petition for appellate review of that decision and
thus bring the merits of the Board’s decision in Boeing
before the court of appeals.10 Accordingly, we reject
Local 159’s claim that due process requires that Local
159 be allowed to intervene here.11

Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365
NLRB No. 156 (2017), vacated 366 NLRB No. 26 (2018). The court
would have held that the Board was without jurisdiction to overrule
Browning-Ferris. That it did not reveals the baselessness of the dis-
sent’s suggestion.
9 The dissent claims that dismissal of the no-camera-rule allegation
in Rio All-Suites is “inevitable.” That is more than we know. For one
thing, Local 159 may argue that Boeing was wrongly decided, and may
articulate reasons not considered there. For another, Local 159 may
argue that even if the Board adheres to its decision in Boeing, it should
not apply that decision retroactively to Rio All-Suites, notwithstanding
that the Board in Boeing found retroactive application of its decision
appropriate. Such an argument would not be unprecedented. In Wal-
Mart Stores, Inc., 351 NLRB 130 (2007), the Board declined to apply
IBM Corp., 341 NLRB 1288 (2004), retroactively, despite the fact that
the Board in IBM Corp. applied that decision retroactively, because
retroactive application in Wal-Mart Stores would have worked a mani-
fest injustice. Nothing prevents Local 159 from advancing a similar
argument in Rio All-Suites.
10 Accordingly, we reject the dissent’s provocative suggestion that
by denying Local 159’s motion to intervene, we seek “to insulate Boe-
ing from full judicial scrutiny.” And of course, Local 159 is not the
only entity that can place the standard adopted in Boeing before a court
of appeals. The charging party in Boeing itself may file a petition for
review of the Boeing decision. The dissent notes that it has not done
so, but it may yet: the Act places no time limit on the filing of a peti-
tion for review.
11 We do not concede, however, that had the Ninth Circuit denied the
Board’s motion to remand Rio All-Suites, Local 159 would have had a
due-process right to intervene here. “Procedural due process imposes
constraints on governmental decisions which deprive individuals of
‘liberty’ or ‘property’ interests within the meaning of the Due Process
Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge,
424 U.S. 319, 332 (1976). The Board’s decision in Boeing obviously
did not deprive Local 159 of a liberty interest. See Board of Regents v.
Roth, 408 U.S. 564, 572 (1972) (holding that the liberty guaranteed by
the Due Process Clause “denotes not merely freedom from bodily re-
straint but also the right of the individual to contract, to engage in any
of the common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God accord-
ing to the dictates of his own conscience, and generally to enjoy those
privileges long recognized . . . as essential to the orderly pursuit of
happiness by free men”) (internal quotations omitted). Neither did it
deprive Local 159 of any interest in property. Local 159 may well view
the decision in Rio All-Suites invalidating the respondent’s no-camera
rules as having conferred a benefit on itself and employees it repre-
sents. But “[t]o have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it. He must have
more than a unilateral expectation of it. He must, instead, have a legit-
imate claim of entitlement to it.” Board of Regents v. Roth, 408 U.S. at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
For all of these reasons, Local 159’s motion to inter-
vene is denied and the motion to reconsider is denied as
moot.
Dated, Washington, D.C. July 17, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBERS PEARCE and MCFERRAN, dissenting.
The Painters Union1 moves to intervene for the pur-
pose of seeking reconsideration of the Board’s December
14, 2017 decision in this case. Because the Union cor-
rectly asserts that its interests were directly affected by

577. Clearly, Local 159 is not entitled to a decision that invalidates Rio
All-Suites’ no-camera rules, such that it must be given notice and an
opportunity to be heard before that decision can be overruled. Indeed,
in Rio All-Suites itself, the General Counsel litigated those rules in the
public’s interest, not the Union’s. See Amalgamated Utility Workers v.
Consolidated Edison Co. of New York, 309 U.S. 261, 265 (1940) (hold-
ing that the “Board as a public agency acting in the public interest, not
any private person or group, not any employee or group of employees,
is chosen as the instrument to assure protection from the described
unfair conduct in order to remove obstructions to interstate com-
merce”); see also NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959)
(rejecting the notion that the “statutory machinery” of the Act is “a
vehicle for the vindication of private rights”).
The dissent claims that the above remarks “suggest[]” that we would
reject Local 159’s position even if we permitted it to intervene. As
should be clear to every fair-minded reader, the only issue we address
herein is whether to permit Local 159 to intervene. In that regard, we
have rejected the dissent’s claim that due process requires us to do so.
We recognize, as the dissent reminds us, that charging parties have due-
process rights under the Administrative Procedure Act, and that, under
International Union, UAW v. Scofield, 382 U.S. 205 (1965), charging
parties are entitled to seek judicial review of an adverse Board order
and to intervene in an appellate review proceeding in order to defend a
favorable Board order. But these reminders miss the mark, given that
Local 159 is not the charging party in this case, and the issue presented
here is whether to allow it to become a party. Even assuming that due
process would require us to permit Local 159 to intervene were this the
only case in which it could present its Boeing-related arguments, it is
not the only case. Local 159 may present those arguments in Rio All-
Suites. It will have a full and fair opportunity to be heard there. For
this reason if for no other, we deny the motion to intervene.
1 International Union of Painters and Allied Trades, District Council
15, Local 159, AFL–CIO.
the decision, due process demands that its motion be
granted. Unfortunately, the Board majority takes another
course, continuing the agency’s disregard for basic pro-
cedural fairness that has marked this case from the be-
ginning. If the Board wants its decisions viewed as legit-
imate, and treated with deference, it will have to do bet-
ter than this.
I.
In its December 2017 decision, a divided Board over-
ruled the well-established standard it had applied in cases
involving facial challenges to employer rules that do not
explicitly restrict activities protected by Section 7 of the
National Labor Relations Act.2 No party to the case had
asked the Board to overrule the Lutheran Heritage stand-
ard. Nor did the Board notify the parties or the public, in
advance, that it intended to overrule the standard (and
apply a new standard retroactively). This was a signifi-
cant departure from Board norms, as the dissenters
pointed out.3
But that was not all. Not satisfied with overruling the
Lutheran Heritage standard sua sponte and without no-
tice, the Boeing Board also expressly overruled the
Board’s 2015 decision in Rio All-Suites,4 a decision
pending on review in the U.S. Court of Appeals for the
Ninth Circuit and over which the Board lacked jurisdic-
tion.5 In Rio All-Suites, the Board (applying the Luther-
an Heritage standard) had invalidated an employer’s no-
camera rule. The Boeing majority, however, held that
no-camera rules are always lawful to maintain.6
The Painters Union seeking intervention here was the
charging party in Rio All-Suites. Of course, it had no
notice that the Board intended to reverse the 2015 deci-
sion in its favor—and no reason to suspect that the Board
would do so: no party in Boeing had asked the Board to
overrule Lutheran Heritage, much less Rio All-Suites,
and, indeed, Rio All-Suites was pending in the Ninth Cir-
cuit, where the court had exclusive jurisdiction.
No party has sought judicial review of the Board’s
Boeing decision, overruling Rio All-Suites. The Painters
Union, of course, was not a party—though perhaps it
could be argued that it would have standing to challenge

2 The Boeing Co., 365 NLRB No. 154 (2017), overruling analytical
framework set forth in Lutheran-Heritage Livonia, 343 NLRB 646
(2004).
3 Id., slip op. at 31–33 (dissenting opinion of Member McFerran).
4 Id., slip op. at 19 fn. 89, overruling Caesars Entertainment d/b/a
Rio All-Suites Hotel & Casino, 362 NLRB No. 190 (2015).
5 Under Sec. 10(e) of the Act, once the record in a case is filed with
a reviewing court of appeals, the Board loses jurisdiction. 29 U.S.C.
§160(e) (“Upon the filing of the record with it the jurisdiction of the
court shall be exclusive. . . . ”). In seeking remand of Rio All-Suites,
the Board expressly acknowledged the court’s exclusive jurisdiction.
6 365 NLRB No. 154, slip op. at 15, 19 fn. 89.
BOEING CO. 5
the Board’s decision, under Section 10(f) of the Act, as a
“person aggrieved by [the] final order of the Board”
there.7 Sensibly, the Painters Union has instead sought to
intervene in this case and to seek reconsideration of the
Board’s decision, including the sua sponte overruling of
Rio All-Suites.
Following issuance of the Boeing decision, the Ninth
Circuit—at the Board’s request, and without elabora-
tion—remanded the Rio All-Suites case to the Board, for
reconsideration in light of Boeing.8 The Painters Union
had opposed remand, arguing in part that it had sought to
intervene in this case and seek reconsideration of the
Boeing decision.
II.
The threshold question here is whether the Painters
Union is entitled to intervene in this case, so that it may
argue that the Boeing Board violated due process when it
overruled Rio All-Suites—without first providing the
Union with notice and an opportunity to be heard. The
due-process violation is clear. The Painters Union was a
party in the pending case, and its victory was stripped
away in what amounted to a secret re-adjudication. The
majority today arbitrarily denies intervention, side-
stepping the due-process issue and creating an obstacle to
judicial review of Boeing.
A.
Section 10(b) of the Act, which governs unfair labor
practice proceedings, provides that “[i]n the discretion of
the member, agent, or agency conducting the hearing or
the Board, any other person [in addition to the respond-
ent] may be allowed to intervene in the said proceed-
ing.”9
Intervention here is clearly warranted. It is obvious
that the Painters Union has an interest implicated in this
case that it cannot protect unless intervention is granted.
In expressly overruling the no-camera-rule holding in
Rio All-Suites and announcing that such rules are always
lawful, the Boeing decision stripped the Painters Union
of the victory it had won before the Board—without no-
tice and an opportunity to be heard.
As the charging party in Rio All-Suites, the Painters
Union was, of course, a party to that case with a com-
mensurate legal interest at stake in the proceeding and its
outcome.10 The charging party in a Board case, in turn,

7 29 U.S.C. §160(f).
8 The Board’s motion for partial remand did not mention Boeing’s
explicit overruling of Rio All-Suites with respect to the no-camera rule
violation found there.
9 29 U.S.C. §160(b) (emphasis added).
10 The Board’s Rules and Regulations define the term “party” to in-
clude “any person filing a charge . . . under the Act.” Board’s Rules &
Regulations, Sec. 102.1(h). As the Supreme Court has explained:
is entitled by the Act both to seek judicial review of an
adverse Board order and to defend a Board order favora-
ble to it, as the Supreme Court has held in the Scofield
case.11 In holding that charging parties are entitled to
intervene to defend a Board order, the Court rejected the
view that the charging party has no separate interest to
protect, beyond the “public interest” represented by the
General Counsel. Rather, it was clear that the “charging
party may have vital ‘private rights’ in the Board pro-
ceeding.”12
No one could deny, then, that the Painters Union, as
the charging party, had the right to participate fully in
Rio All-Suites. But it should be equally apparent that the
Painters Union must be granted intervention in this pro-
ceeding, given the direct and dispositive effect of the
Boeing decision on the interest of the Painters Union at
stake in Rio All-Suites. The Boeing Board not only held
that no-camera rules were always lawful, but went so far
as to explicitly overrule Rio All-Suites. Boeing, in other
words, conclusively disposed of the no-camera-rule issue
in Rio All-Suites. On remand of Rio All-Suites from the
Ninth Circuit, nothing remains for the Board to do except
to follow precedent, established in Boeing, and dismiss
the complaint allegation—unless, of course, the Board
grants the Painters Union motion to intervene here and
reconsiders Boeing, as it should.
The Painters Union thus has a compelling interest in
intervention. In contrast, the majority’s reasons for
denying intervention here do not pass scrutiny. Its deni-
al, therefore, amounts to an abuse of the Board’s discre-
tion.
1.
That the “Board’s rules do not provide for intervention
under the circumstances presented here,” as the majority
observes, is immaterial, as Board precedent demon-
strates. There is no support for the proposition that in-
tervention cannot be granted after the close of the hearing

When the General Counsel issues a complaint and the proceeding
reaches the adjudicative stage, the course the hearing will take is in the
agency’s control, but the charging party is accorded formal recogni-
tion: he participates in the hearings as a “party;” he may call witnesses
and cross-examine others, may file exceptions to any order of the trial
examiner [now administrative law judge], and may filed a petition for
reconsideration to a Board order.
International Union, UAW v. Scofield, 382 U.S. 205, 219 (1965) (foot-
note omitted).
11 Scofield, supra, 382 U.S. at 219–222.
12 Id. at 220. The Court observed that: “[T]he statutory pattern of the
[National Labor Relations Act] does not dichotomize ‘public’ as op-
posed to ‘private’ interests. Rather, the two interblend in the intricate
statutory scheme.” Id. (footnote omitted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
before the administrative law judge. While the text of
the Board’s rule affirmatively provides for intervention
before or during the hearing, it does not prohibit inter-
vention after the hearing, e.g., while the case is pending
before the Board on exceptions from a decision of the
administrative law judge.13 And, indeed, the Board has
granted intervention in cases pending before it, rejecting
the argument that the absence of a rule “authorizing in-
tervention before the Board” was precluded interven-
tion.14 In other cases, the Board has also granted inter-
vention in a pending case.15 The Board has never held,
meanwhile, that it lacks authority to do so. Where it has
denied intervention, the Board has done so based on the
particular circumstances. In one case, for example, in-
tervention was sought for the first time after (1) the
Board had issued its order, (2) a petition for review was
filed in the court of appeals, and (3) the court remanded

13 Sec. 102.29 of the Board’s Rules and Regulations provides in rel-
evant part that:
Any person desiring to intervene in any proceeding must file a motion
in writing or, if made at the hearing, may move orally on the record,
stating the grounds upon which such person claims an interest. Prior
to the hearing, such a motion must be filed with the Regional Director
issuing the complaint; during the hearing, such motion must be made
to the Administrative Law Judge.
The rule nowhere refers to intervention after the hearing, whether to
expressly permit it or to prohibit it. But there is no good reason to
interpret the rule’s silence as a prohibition.
First, the Board’s rules themselves provide that the “Rules and Reg-
ulations . . . will be liberally construed to effectuate the purposes and
provisions of the Act.” Board’s Rules and Regulations, Sec. 102.121.
Permitting intervention by a person with a cognizable interest in a
pending case effectuates the Act’s purposes.
Second, some cases are brought directly to the Board, bypassing a
hearing before an administrative law judge, by stipulation of the parties,
as approved by the Board. Board’s Rules and Regulations, Sec.
102.35(a)(9). The Board has granted intervention in such situations.
See, e.g., Postal Service, 279 NLRB 40 (1986) (granting motion to
intervene after case was transferred to the Board on a stipulated record),
enf. denied on other grounds, 827 F.2d 548 (9th Cir. 1987). The conse-
quence of the majority’s position here would be to prohibit intervention
in such cases.
Finally, the Board’s rules authorize the Board to order the transfer of
any pending proceeding to itself. Board’s Rules and Regulations, Sec.
102.50. If the Board has that power, it surely has the power to permit
intervention in a proceeding already pending before it, just as Sec.
10(b) of the Act suggests
14 See Postal Service, 275 NLRB 360, 360 fn. 1 (1985).
15 See, e.g., Premier Cablevision, 293 NLRB 931, 931 fn. 1 (1989)
(granting motion to intervene filed by possible successor employer after
issuance of administrative law judge’s decision, denying accompanying
motion to dismiss as untimely and lacking in merit); see also Presbyter-
ian Hospital, 285 NLRB 935, 935 fn. 1 (1987) (considering motion to
intervene filed after issuance of administrative law judge’s decision and
denying it on the merits).
the case to the Board.16 The Board held the motion to
intervene untimely, noting that the movant had not ex-
plained its failure to seek intervention “before the Board
while the case was pending on exceptions” and had “not
shown any changed circumstances warranting its late
intervention.”17
There is no support, meanwhile, for any claim that the
Board lacks the power to grant intervention in a proceed-
ing after it has issued its decision and order, assuming
that the Board retains jurisdiction over the case con-
sistent with Section 10(e) of the Act (i.e., that the record
has not been filed in a court of appeals, following the
filing of a petition for review of the Board’s order). The
Board has, indeed, granted intervention in such circum-
stances,18 and it would be justified in doing so here.19
The Board has jurisdiction over this case, where no pe-
tition for review has been filed. And it cannot fairly be
argued that the motion to intervene here is untimely. The
Painters Union was not on notice that the Board intended
to overrule Rio All-Suites. No party had asked the Board
to do so, the Board never provided notice to the public or
the parties of its intention, and the Board no longer had
jurisdiction over Rio All-Suites, which was pending in
the Ninth Circuit. However, once the Boeing decision
issued, the Painters Union acted promptly, filing its mo-
tion to intervene within the 28 days provided by the
Board’s rules for seeking reconsideration of a Board de-
cision and order.20 The single, unpublished decision cit-
ed by the majority to support its contrary position is easi-
ly distinguishable on its facts.21

16 Oak Harbor Freight Lines, Inc., 361 NLRB No. 82, slip op. at 1
fn. 1 (2014).
17 Id.
18 See Drukker Communications, 299 NLRB 856, 856 (1990) (grant-
ing motion to intervene filed by possible successor employer after
issuance of Board decision and order and denying accompanying mo-
tion for reconsideration as untimely); William Penn Broadcasting
Company, 94 NLRB 1175, 1176 fn. 1 (1951) (granting motion to inter-
vene and reopening record after issuance of Board decision and order
dismissing complaint, 93 NLRB 1104 (1951)).
19 The majority is mistaken in asserting that granting intervention
here would mean that the “Board would continually be revisiting its
decisions on motions to intervene and for reconsideration filed by
strangers to the case claiming an implicated interest.” The Painters
Union is hardly an interloper here. The Union’s clear and direct inter-
est in this case was created by the Boeing Board itself, when the Board
overruled Rio All-Suites, while the case was pending in the Ninth Cir-
cuit, without notice and an opportunity for the Painters to be heard. It
will be the unusual case (one hopes) when a litigant finds itself in the
same situation as the Painters Union here. Permitting intervention,
then, hardly opens the Board’s doors to “everybody and his uncle.”
20 See Board’s Rules and Regulations, Sec. 102.48(c)(1), (2).
21 In United States Postal Service, 05–CA–122166, 2015 WL
3932157 (June 25, 2015), the Board denied a motion to intervene as
untimely in circumstances very different from those presented here.
The moving party, a law firm whose connection to the case was entirely
BOEING CO. 7
2.
The majority’s second argument for denying interven-
tion simply fails to engage with the circumstances before
the Board now. The majority says that “whenever the
Board issues a decision that overrules precedent and ap-
plies that decision retroactively,” as the Boeing majority
did, “it is virtually certain that live cases will be affect-
ed.”22 But, the majority continues, the Board has never
held that it “must” give parties to those cases notice of its
intention to overrule precedent and an opportunity to be
heard and “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.”23 These assertions beg the
question presented by the Painters Union’s motion.

unclear, sought intervention only after the administrative law judge had
issued his decision, no party to the case had filed exceptions to the
decision with the Board, and the Board had issued an order adopting
the judge’s decision in the absence of exceptions. The law firm filed its
motion more than 3 months after the Board’s order. In explaining its
delay in seeking intervention, the firm cited a lack of notice that the
case was pending. The Board rejected this argument, observing that the
firm had “disclosed no interest in this case that might even arguably
have entitled it to notification of the charge or complaint.” Here, in
contrast, the interest of the Painters Union is clear, the Board’s failure
to provide notice is indisputable and unjustified, and the Union acted
both reasonably and promptly in seeking intervention when it did.
22 There is a clear distinction between the situation presented here
and the more typical situation where a Board decision reversing prece-
dent (and announcing a new legal principle) will be retroactively ap-
plied to cases pending before the Board. In the latter situation—where
the Board’s decision very often has been preceded by a public notice
and invitation to file briefs–parties in pending cases will be able to
argue about how the new principle should apply to the particular facts
of their cases. Here, in contrast, Boeing summarily and specifically
adjudicated the no-camera rule issue in Rio All-Suites, although that
case was pending in the Ninth Circuit (not before the Board).
23 To be sure, the majority cites no decision in which a Federal ap-
pellate court has actually addressed the argument that a Board decision
reversing precedent should be set aside based on the Board’s failure to
provide prior public notice and invite briefing.
In Boeing, Member McFerran argued in dissent that the majority had
“deliberately and arbitrarily excluded the public from participating in
the policymaking process” in violation of the Administrative Procedure
Act’s requirement that the Board’s adjudication amount to “reasoned
decisionmaking.” Boeing, supra, 365 NLRB No. 154, slip op. at 33–34
(dissenting opinion). Member Pearce’s dissent similarly argued that the
Board’s failure to provide the public and the Boeing parties with notice
and an opportunity to be heard was arbitrary and raised due process
concerns. Id., slip op. at 25 & fn. 10 (dissenting opinion).
Notably, Federal appellate courts have made clear that when an ad-
ministrative agency establishes a new rule through adjudication, due
process requires notice and an opportunity to be heard. See, e.g., Mobil
Exploration & Producing North America, Inc. v. FERC, 881 F.2d 193,
199 (5th Cir. 1989); Ruangswang v. INS, 591 F.2d 39, 44–46 (9th Cir.
1978). The Second Circuit, meanwhile, has criticized the Board for
failing to give an employer notice of its intention to overrule precedent,
but declined to remand the case because the employer’s potential argu-
ments had already been made, unsuccessfully, by the dissenting Board
members. NLRB v. A.P.W. Products Co., 316 F.2d 899, 906 (2d Cir.
The issue now is whether the Painters Union should be
permitted to intervene, in order to present its arguments
for Board reconsideration of Boeing. The Board need
not decide whether the Union’s arguments are meritori-
ous.
In any case, the majority’s attempt to dismiss those ar-
guments summarily is badly mistaken, even on its own
terms. Rio All-Suites was not simply a “live case” when
Boeing was decided (and Rio All-Suites expressly over-
ruled) without notice to the Painters Union and without
an opportunity for the Union to be heard. It was a case
(1) in which the Board had already ruled in favor of the
Painters Union, (2) that was pending in a court of ap-
peals, and (3) over which the Board lacked jurisdiction.
No Board decision, and no judicial decision, has ever
held that the Board was free to do what it did here: de-
prive the Painters Union of the benefit of a favorable
Board decision in a pending case, with no notice and an
opportunity to be heard, when it lacked jurisdiction over
the case (and thus had no power to reconsider its earlier
decision). Whether the Boeing Board’s failure to provide
public notice and invite briefing before overruling Lu-
theran Heritage sua sponte was a violation of the Due
Process Clause and/or the Administrative Procedure Act
is a separate question from the narrower issue presented
by the Painters Union. We need not revisit that question
now—all we need decide today is whether the Boeing
majority erred with respect to its treatment of the Paint-
ers Union and Rio All-Suites in the particular circum-
stances at hand—and it is manifestly clear that the major-
ity did err.
3.
The majority’s third argument has even less merit than
its other contentions. According to the majority, by op-
posing the remand of Rio All-Suites to the Board from
the Ninth Circuit, the Union estopped itself from seeking
intervention here. In the majority’s words, the Union
“sought to deny itself the very opportunity it seeks here”
and so “cannot now be heard to argue that the Board
must permit it to intervene.” This argument is nonsense.

1963). (The Second Circuit’s rationale for declining to remand the
case, notably, does not comport with the Supreme Court’s later-
expressed understanding of due-process requirements. See Nelson v.
Adams USA, Inc., 529 U.S. 460, 471 (2000) (observing that “judicial
predictions about the outcome of hypothesized litigation cannot substi-
tute for the actual opportunity” to be heard).) See also NLRB v. Majes-
tic Weaving Co., 355 F.2d 854, 862 fn. 4 (2d Cir. 1966) (it is “highly
undesirable for an agency to announce a new per se rule without either
a rulemaking or an evidentiary hearing, thereby denying itself the light
on the proper content of the rule which such proceedings would af-
ford”); NLRB v. E & B Brewing Co. 276 F.2d 594, 599 (6th Cir. 1960)
(Board not permitted to establish new legal rule “by an adjudication of
a matter not in issue before it”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
What the Union properly sought in the Ninth Circuit
was to protect its prior victory before the Board from the
reach of the Boeing decision, issued without notice and
opportunity for the Union to be heard. Before the Board,
the Union seeks to argue (as it wished to do before the
Ninth Circuit) that Boeing was wrongly decided—albeit
to do so, it must be permitted to intervene here. It is ar-
bitrary to insist that the Union was somehow forced to
choose between acquiescing in the remand of Rio All-
Suites to the Board (and with it, the inevitable dismissal
of the no-camera-rule allegation there, based on Boeing)
or intervening in this case to urge that the Boeing majori-
ty erred.
To the contrary, the Union was entitled to do both, that
is, to use every available procedural avenue to defend its
legal interest, despite the Board majority’s persistent
efforts to deny the Union due process. The majority’s
argument is perhaps best understood as groping to invoke
the doctrine of judicial (or, here, quasi-judicial) estop-
pel.24 But that doctrine cannot apply because (1) the
Union has not taken inconsistent positions; (2) even if it
had, the Union has not prevailed on one position, only to
take another; and (3) in any case, there is no danger of
unfairness to any other party in permitting the Union to
intervene.25
4.
The majority’s final reason for denying intervention is
that, with Rio All-Suites remanded to the Board, the
Painters Union will have the “opportunity to make what-
ever arguments regarding Boeing it wishes to make, in-
cluding that Boeing should be overruled.” This reason,
too, cannot withstand scrutiny.
The argument of the Painters Union is that it was enti-
tled to notice and an opportunity to be heard in Boeing—
before the Board expressly overruled Rio All-Suites. For
all of the reasons offered here, that argument is appropri-
ately made in Boeing. “The fundamental requirement of
due process is the opportunity to be heard ‘at a meaning-
ful time and in a meaningful manner.’”26 Here, that
means (at the very least) the opportunity to argue that

24 See generally New Hampshire v. Maine, 532 U.S. 742, 749 (2001)
(discussing judicial estoppel doctrine). Judicial estoppel “generally
prevents a party from prevailing in one phase of a case on an argument
and then relying on a contradictory argument to prevail in another
phase.” Id., quoting Pegram v. Herdrich, 530 U.S. 211, 227 fn. 8
(2000).
25 See Marshall v. Department of Health and Human Services, 587
F.3d 1310 (Fed. Cir. 2009) (veteran was not judicially estopped from
challenging Merit Systems Protection Board order, where veteran had
earlier filed unsuccessful petition for enforcement of order and had
consistently pursued relief not included in order).
26 Mathews v. Eldridge, 424 U.S. 319, 333 (1976), quoting Arm-
strong v. Manzo, 380 U.S. 545, 552 (1965).
Boeing should be reconsidered—i.e., reevaluated by the
Board in a continuation of the same proceeding that led
to the decision, before it is given full precedential effect.
The opportunity to argue that Boeing should be over-
ruled, of course, is open to any party in any post-Boeing
case. In that context, however, the party will confront
the doctrine of stare decisis. Fairness to the Painters Un-
ion requires allowing the Union to argue on as clean a
slate as possible that the Board’s decision in Boeing
should have followed – not overruled—Lutheran Herit-
age and Rio All-Suites, decisions that represented gov-
erning law and that had not been called into question by
the Boeing parties.27
Not permitting the Painters Union to intervene, in turn,
threatens to prejudice the Union’s ability to seek judicial
review of the Boeing decision itself. Presumably, pursu-
ant to Section 10(f) of the Act, the Union will be able to
petition for review of the Board’s order today denying
intervention, because the Union is clearly aggrieved by
that order.28 But review of today’s order may not bring
the underlying Boeing decision before an appellate court.
In this respect, too, the majority seems inexplicably de-
termined to set up procedural obstacles before the Paint-
ers Union and to insulate Boeing from full judicial scru-
tiny.
B.
Intervention is the threshold question here. Absent in-
tervention, the Painters Union is not entitled to seek re-
consideration of Boeing. And because the majority is
denying the Union’s motion to intervene, the Board does
not resolve the Union’s due-process attack on Boeing. In
a footnote, however, the majority addresses the subject,
suggesting it would reject the Union’s position even if it
permitted the Union to intervene. Whether or not this
dicta is appropriate, given the majority’s claim that the
Union will have the opportunity to raise its arguments in
Rio All-Suites on remand,29 the majority’s discussion

27 The majority insists that it “makes more sense” to require the
Painters Union “to argue its case in the context of the facts of its own
case,” Rio All-Suites. But the Boeing Board has already adjudicated the
Union’s case: all no-camera rules, the Boeing Board held, are lawful,
including—specifically and by name—the one at issue in Rio All-
Suites. Thus, as previously noted, Boeing is not a decision where the
Board has adopted a new legal test that leaves other cases to be decided
based on their particular facts—the majority’s actions have made the
facts immaterial.
28 As noted earlier (see fn. 7, supra), under Sec. 10(f) of the Act,
“[a]ny person aggrieved by a final order of the Board granting or deny-
ing in whole or in part the relief sought may obtain a review of such
order.” 29 U.S.C. §160(f).
29 It would certainly be a surprise if the Board, in deciding Rio All-
Suites on remand, did anything other than reaffirm Boeing in every
respect, in light of the majority’s discussion today.
BOEING CO. 9
reflects a serious misunderstanding of the due-process
issues presented by the Boeing decision.
Here, as already explained, the Painters Union was a
prevailing party in Rio All-Suites. While that case was
pending in the Ninth Circuit, the Boeing Board explicitly
reversed Rio All-Suites and held that no-camera rules are
always lawful—permanently depriving the Union of its
previous victory. But the Painters Union had no notice
and no opportunity to be heard. Rio All-Suites, in other
words, was secretly re-adjudicated with no meaningful
process at all.
The core of the majority’s view seems to be that the
Painters Union lacks a protectable due-process interest.
For reasons already suggested, that view is flatly incon-
sistent with the Supreme Court decision in Scofield, su-
pra, which held that charging parties in a Board case are
entitled to seek judicial review of an adverse Board order
and to intervene in an appellate review proceeding in
order to defend a favorable Board order. In Scofield, the
Court distinguished an earlier decision on which the ma-
jority’s analysis here mistakenly relies.30 If charging
parties in Board cases lacked a due-process interest, of
course, the Board would seemingly be free to revise its
rules to exclude them from Board proceedings altogeth-
er—but the majority surely does not take that extreme
position.
The majority cannot and does not argue that the Board
is somehow free to ignore due process, whether defined
by the Constitution or by the Administrative Procedure
Act (APA), which establishes due process guarantees for
adjudication by Federal administrative agencies.31 The
Supreme Court has observed that the “Board’s proce-
dures are, of course, constrained by the Due Process
Clause of the Fifth Amendment.”32 But the Court has

30 Scofield, supra, 382 U.S. at 220–221, distinguishing Amalgamated
Utility Workers v. Consolidated Edison Co., 309 U.S. 261 (1940) (hold-
ing that charging party could not prosecute contempt action involving
Board order).
31 Section 554(c) of the Administrative Procedure Act, for example,
provides in part that:
The agency shall give all interested parties opportunity for—
(1) the submission and consideration of facts, arguments, offers of set-
tlement, or proposals of adjustment when time, the nature of the pro-
ceeding, and the public interest permit; and (2) to the extent that the
parties are unable so to determine a controversy by consent, hearing
and decision on notice….
5 U.S.C. §554 (emphasis added). See, e.g., Marine Engineers’ Benefi-
cial Ass’n No. 13 v. NLRB, 202 F.2d 546, 549 (3rd Cir. 1953) (citing
APA and holding that charging party is entitled to be heard on objec-
tions to proposed formal Board settlement and to seek judicial review
of resulting Board order).
32 International Telephone & Telegraph Corp. v. Local 134, Int’l
Bhd. of Electrical Workers, 419 U.S. 428, 448 (1975). See, e.g., Alaska
also made clear, and there can be no doubt, that the
Board’s adjudication is subject to the APA.33 Whatever
Fifth Amendment category the interests of a charging
party before the Board may fall into, the National Labor
Relations Act and the Administrative Procedure Act in-
dependently create a due-process interest that the Board
must honor.34
Notice and opportunity to be heard are essential re-
quirements of due process of law in judicial proceed-
ings.35 Indeed, early in the Board’s history (and even
before enactment of the APA), the Court held that the
Board violated due process and exceeded its authority
when it invalidated certain collective-bargaining agree-
ments without first making the unions who were signato-
ries to the agreements parties to the Board proceeding.36
It is impossible to understand how due process could
permit the Board to deprive the Painters Union of the
benefit of a favorable Board decision, issued in a pro-
ceeding where it was a party, without first giving the
Union notice and an opportunity to be heard. The Union
can no more be bound by Boeing than a Board decision
could bind unions whose collective-bargaining agree-
ments were invalidated without notice and opportunity to
be heard, and no more than a party’s state-court claim
can be precluded by the judgment in a proceeding it nev-
er knew about. In the Supreme Court’s words, the “right
to be heard ensured by the guarantee of due process ‘has
little reality or worth unless one is informed that the mat-
ter is pending and can choose for himself whether to ap-
pear or default, acquiesce or contest.’”37

Roughnecks & Drillers Assn. v. NLRB, 555 F.2d 732, 735 (9th Cir.
1977) (putative joint employer could not be found liable for refusal to
bargain, in absence of notice and opportunity to participate in prior
representation case leading to union’s certification as bargaining repre-
sentative) (“The conceptual basis for our decision is due process. Its
application to NLRB proceedings, like other administrative proceed-
ings, is not novel.”).
33 Allentown Mack Sales and Service, Inc. v. NLRB, 522 U.S. 359,
374 (1998).
34 See, e.g., Independent Electrical Contractors of Houston, Inc. v.
NLRB, 720 F.3d 543, 552 (5th Cir. 2013) (applying principles of
“[a]dministrative due process, reflecting constitutional standards,” and
citing APA to find that respondent employer was entitled to prior notice
of novel legal theory of liability applied by Board).
35 See, e.g., Richards v. Jefferson County, Alabama, 517 U.S. 793,
797 fn. 4, 799 (1996) (in light of due process guarantees, prior judg-
ment cannot have res judicata effect on person who had no notice and
opportunity to be heard in prior litigation).
36 Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197,
218–219 (1938).
37 Richards v. Jefferson County, Alabama, supra, 517 U.S. at 799,
quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
III.
The Board plainly erred in issuing Boeing using the
arbitrary and unfair process that it did. It could easily
have observed due process by (1) issuing a public notice
and invitation to file briefs, announcing that it was con-
sidering whether to overrule Lutheran Heritage Village,
Rio All-Suites, and the other decisions it ultimately re-
versed; and (2) seeking a remand of Rio All-Suites from
the Ninth Circuit so that it could have reconsidered that
case simultaneously with consideration of Boeing,38
while providing notice and opportunity to be heard to the

38 See, e.g., E.I. du Pont de Nemours, 274 NLRB 1104, 1104 (1985)
(subsequent history omitted) (Board decision reconsidering prior deci-
sion: Board requested remand from court of appeals, case was remand-
ed, charging party was permitted to intervene, and parties were invited
to file statements of position).
Rio All-Suites parties, including the Painters Union. The
rush to judgment reflected in Boeing instead made a
mockery of due process rights. Today’s decision com-
pounds that grievous error. Accordingly, we dissent.
Dated, Washington, D.C. July 17, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD