Appeals court says NLRB rulings inconsistent

Michael P. Tremoglie Jun. 13, 2012, 7:00am

WASHINGTON (Legal Newsline) - A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit reversed an order by the National Labor Relations Board on Friday.

The NLRB had held that E.I. Du Pont de Nemours & Co. engaged in an unfair labor practice by unilaterally making changes to its employee benefits program while between collective bargaining agreements with two local unions.

Du Pont offers a medical plan with an open enrollment period each autumn. The plan contains a reservation of rights clause which permits the company "to change or discontinue this Plan in its discretion provided, however, that any change in price or level of coverage shall be announced at the time of annual enrollment and shall not be changed during a Plan Year unless coverage provided by an independent, third-party provider is significantly curtailed or decreased during the Plan Year."

Du Pont has periodically changed the benefit plan during enrollment each year since at least 1996. These modifications included premium increases for medical, life, vision, and dental insurance, changes in coverage and the addition and elimination of plan options. The changes applied to union and non-union employees alike.

Du Pont had collective bargaining agreements with two unions and made changes to the benefit plan per the terms of the contracts without objections by the unions. But when the company made changes during negotiations the union objected. The NLRB sided with the unions saying Du Pont violated sections of the National Labor Relations Act by making unilateral changes during ongoing negotiations with the unions.

The court said that it will affirm the NLRB when it is following legal precedents and the law. But it noted that the NLRB "previously approved extensive unilateral changes to health care benefit programs during a hiatus between (Collective Bargaining Agreements) when doing so was the established practice and the changes were within an acceptable degree of discretion."

Because the NLRB deviated from its precedent of allowing an employer unilaterally to change wages, hours or working conditions "when doing so is in keeping with the employer's past practice," they granted Du Pont's review petition for NLRB order and reversed and remanded the case.

The Appeals Court stated that the NLRB did not offer "any reason whatsoever for thinking a unilateral action being taken during a hiatus period, although expressly deemed immaterial in (a recent case), should be dispositive in this case."

The court remanded for a new decision in conformity with its recent precedent or for an explanation justifying the Board's inconsistent treatment.

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