Due to the nature of the political appointment process for NLRB members, Board law often changes as the political makeup of the Board shifts. Although the Board is free to change its interpretation and application of its prior decisions, it cannot do so without explaining why the prior precedent should no longer be applied, as the United States Court of Appeals for the  D.C. Circuit reminded the Board in E.I. Du Pont De Nemours and Company v. NLRB.

In that case, the employer sought review of the Board’s decision that it violated the Act by unilaterally implementing changes in its employee benefits program after its collective bargaining agreement with the union expired, but before a new agreement was reached. Du Pont argued that it had a past practice of making changes to its benefits programs each year for union and non-union employees, and that, under prior Board decisions such as Courier-Journal, if an employer can show a past practice of making changes to employee benefits (in that case, health insurance premiums), it does not need to bargain with the union when it acts consistent with that practice by making similar changes during negotiations.

In its decision, the Board distinguished Courier-Journal, pointing to the fact that, although Du Pont had shown a past practice of making changes to benefits during the term of the parties’ contract, it had not shown a past practice of making such changes between contracts. The D.C. Circuit criticized this false distinction, stating that “we see no reason why it should matter whether that past practice first arose under a CBA that has since expired.” The court concluded that the Board had departed from its own precedent with providing a “reasoned justification” for doing so. The court remanded the case to the Board to “either conform to its [existing] precedent… or explain its return to the rule it followed in its earlier decisions.” We will monitor this case and report when the Board issues a new decision following the remand.

Print:
EmailTweetLikeLinkedIn
Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including litigation of discrimination, harassment and retaliation claims, reductions in force, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

He is experienced…

Justin F. Keith represents employers in all areas of labor and employment law—including litigation of discrimination, harassment and retaliation claims, reductions in force, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

He is experienced with wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.

Justin is a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin’s practice encompasses all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010).