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NLRB Overrules DuPont Case, Now Allowing Unilateral Action Consistent with Past Practice

On December 15, 2017, in a 3 to 2 decision, the National Labor Relations Board overruled its 2016 DuPont case, which had ruled that an Employer violated the National Labor Relations Act by not bargaining with a union over a change that was totally consistent with a long-held past practice.

The new case involved changes an Employer had made to healthcare benefits annually from 2001 to 2012. The NLRB determined that, because of this long-established past practice, there was no obligation to give the union notice and an opportunity to bargain before making changes in 2013.

Consistent with Board cases dating back to 1964, this new decision holds that employer actions do not constitute a change requiring bargaining with a union if they are similar in kind and degree with an established past practice consisting of comparable unilateral actions.

The Board held this principal applies regardless of whether a Collective Bargaining Agreement was in effect when the past practice was recreated and no CBA existed when the disputed actions were taken. The Board also stated that the established past practice does not require bargaining, even though it may involve some degree of management discretion.

The NLRB further decided that it was appropriate to apply the decision retroactively.

Editor’s Note: This new decision is consistent with victories our firm previously obtained at the NLRB in past practice cases involving the Post-Tribune in Gary, Indiana and The Pantagraph in Bloomington, Illinois.

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