If the NLRB is Santa, then Santa just left employers a Millennium Falcon under the Christmas tree. One day after issuing two well-received pro-employer decisions, the NLRB overruled one of its most detested decisions from the last eight years, E.I. du Pont de Nemours, 364 NLRB No. 113 (2016), that broke from long-standing board precedent and dramatically altered what constitutes a “change” in the terms and conditions of employment and thus, when an employer is required to bargain with a union. In the DuPont decision, the Board held that bargaining would always be required, even if the parties had not yet agreed to a contract, in every case where the employer’s actions involved some type of “discretion.”
However, on December 15, 2017, in Raytheon Network Centric Systems, 365 NLRB No. 161, the Board continued its Fast and Furious dismantling of many of the more controversial decisions issued during the Obama administration, by rejecting DuPont and returning to what had been long-standing board precedent. The majority of the Board opined:
We conclude that the Board majority’s decision in DuPont is fundamentally flawed, and for the reasons expressed more fully below, we overrule it today. DuPont is inconsistent with Section 8(a)(5), it distorts the long-understood, commonsense understanding of what constitutes a “change,” and it contradicts well established Board and court precedent. In addition, we believe DuPont cannot be reconciled with the Board’s responsibility to foster stable bargaining relationships. We further conclude that it is appropriate to apply our decision retroactively, including in the instant case.
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In sum, and for the reasons stated above, we overrule DuPont as well as Beverly I and Register-Guard, and we reinstate Shell Oil, Westinghouse, Winn-Dixie Stores, Beverly II, Capitol Ford, and the Courier-Journal cases. Henceforth, regardless of the circumstances under which a past practice developed—i.e., whether or not the past practice developed under a collective-bargaining agreement containing a management-rights clause authorizing unilateral employer action—an employer’s past practice constitutes a term and condition of employment that permits the employer to take actions unilaterally that do not materially vary in kind or degree from what has been customary in the past. We emphasize, however, that our holding has no effect on the duty of employers, under Section 8(d) and 8(a)(5) of the Act, to bargain upon request over any and all mandatory subjects of bargaining, unless an exception to that duty applies.”
The retroactive application of this decision is of particular importance and may impact many disputes currently pending with the NLRB. This decision will also have great impact on management-union negotiations, and will provide employers greater ability to act without being required to ask for permission from a union. This is particularly true in the context of employers that do not have a collective bargaining agreement in place.
[I wonder if unions are feeling as if they are Randolph and Mortimer Duke in Trading Places, Hans Gruber in Die Hard (one of my favorite holiday flicks), or Ted Maltin in Jingle All the Way.]
In addition to overruling the DuPont decision on December 15, the Board also overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). The Specialty Healthcare decision made it easier for unions to organize so-called “micro-units.” With PCC Structurals, 365 NLRB No. 160, the Board reinstated its pre-Specialty Healthcare, community-of-interest approach for determining “whether a proposed bargaining unit constitutes an appropriate unit for collective bargaining when the employer contends that the smallest appropriate unit must include additional employees.”
We are well into Hanukkah and only a few days before Christmas, let’s hope that the NLRB continues to shower employers with gifts this holiday season and that this Miracle on 34th Street continues.