February 25, 2020

February 24, 2020

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D.C. Circuit Refuses Enforcement of Board’s Du Pont Decision Regarding Changes to Benefits

The D.C. Circuit handed a win to employers last week when it refused to enforce the Board’s finding that Du Pont Co. had committed an unfair labor practice when it changed its health care plan during negotiations for a new collective bargaining agreement after the old agreement had expired.  Although Du Pont had routinely made changes to its benefits package prior to an annual enrollment period, the Board found that when Du Pont made these annual changes during bargaining for a new contact, the changes were improper unilateral changes and constituted an unfair labor practice. 

Reviewing this decision, the D.C. Circuit found that the Board “failed to give a reasoned justification for departing from its precedent.”  The Court pointed to the Board’s decision in Courier-Journal, 342 N.L.R.B. 1093 (2004), which found in part that an increase in health insurance premiums during contract negotiations was not a unilateral change when the employer had an established past practice of making such a benefits change.   The D.C. Circuit was not persuaded by the Board’s attempt to distinguish the facts of Courier-Journal from the current Du Pont case and remanded the case back to the Board for a decision that conforms to its prior precedents. 

This decision is good news for employers as it significantly reduces the risk of an unfair labor practice charge during negotiations for routine changes to benefit plans.  However, employers must still be careful that all changes made during negotiations after a contract has expired, including annual benefit changes, are supported by an established past practice.

The D.C. Circuit case is E.I. Du Pont de Nemours & Co. v. NLRB, No. 10-1300 (D.C. Cir. June 8, 2012), available here.

The Board’s original decision in E.I. Du Pont De Nemours, Louisville Works is available on the Board's website.



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Barnes & Thornburg’s Labor and Employment Law Department is one of the fastest-growing labor groups in the nation. Two qualities set us apart: Our passion for what we do, and the pride we take in helping clients achieve their business goals. To succeed in the competitive global marketplace, our clients must not only meet but exceed their customers’ expectations. We...