NLRB Overturns Obama-Era Limitation on Employers’ Ability to Implement Changes in Union Workplaces

The National Labor Relations Board has overturned E.I. du Pont de Nemours, 364 NLRB No. 113 (2016), a 2016 decision that limited changes employers could implement in union workplaces.  The Board’s reversal means that employers no longer are required to give notice to and bargain with unions prior to implementing revisions to employment conditions provided there is a history of making similar changes.  

In Raytheon Network Centric Systems, 365 NLRB No. 161 (2017), the Board found that the company did not have to bargain with a union over changes to employee health care benefits because the changes were in line with prior unilateral changes made at the same time each year for more than a decade.  The Board majority pointed out that the DuPont decision was inconsistent with the National Labor Relations Act, it distorted the long-understood, commonsense understanding of what constitutes a change, and it contradicted well-established Board and court precedent.  Furthermore, the DuPont decision could not be reconciled with the Board’s responsibility to foster stable bargaining relationships.

What Employers Need to Know

With this decision, employers may be able to implement changes to employment conditions without bargaining so long as the changes are not materially different from what was done in the past.  This does not, however, affect the union’s right to request bargaining regarding all mandatory subjects, and in no way questions the well-established principle that an employer remains bound by its duty to bargain upon such a request, subject to certain potential exceptions.  Because determinations about mandatory subjects of bargaining are based on the specific facts of each situation, employers should always consult with experienced labor counsel before implementing changes to employment conditions or benefits.