On June 8, 2012, the US Court of Appeals for the District of Columbia Circuit issued an opinion in E.I. Du Pont De Nemours & Co. v. NLRB. The key issue in the case was whether the NLRB had a reasonable justification for departing from precedent that allowed an employer to make unilateral changes to employee benefits if the changes were a continuation of past practice.

The petitioner, E.I. Du Pont De Nemours & Co. (Du Pont), offered its employees a health benefit plan under which it reserved the right to change or discontinue benefits at the time of annual enrollment. Since at least 1996, Du Pont had made annual changes to the benefits plan that applied to employees at all Du Pont facilities, including both unionized and non-unionized workers.

Du Pont had collective bargaining agreements (CBAs) with local unions at two of its production facilities. The CBAs allowed employees to participate in the company plan subject to its terms and conditions, and Du Pont had made annual changes to benefits without objection from the unions. In 2002 and 2004, the CBAs expired, and Du Pont began negotiating new labor contracts with the unions.

During the negotiation process, Du Pont made changes to its benefits plan before the annual enrollment period, as it had in the past. The unions filed separate unfair labor practice charges, alleging that the company violated the NLRA by failing to bargain before changing the terms and conditions of employment. The NLRB issued separate complaints regarding the separate facilities and local unions.

One NLRB administrative law judge dismissed the complaint, while the other found Du Pont violated the NLRA. In separate appeals, the same two member majority of the three member panel (Board) heading the NLRB's judicial functions ruled against Du Pont in both cases. Chairman Liebman and Member Becker concluded that the company had no past practice of changing the plan in between the expiration of one CBA and the adoption of another and must have improperly relied on a union waiver of bargaining or management rights that expired with the parties' CBA.

The majority found Post-Tribune Co. and Courier-Journal were inapposite. In Post-Tribune Co. and Courier-Journal, the employer had set a past practice of making changes both when a CBA was in effect and when it was not. Du Pont had made its past changes before the CBA expired. The majority tied plan revisions to the CBA's management rights clause and found the right to revise the plan expired with management rights under the expired CBA. In dissent, Member Schaumber found that Du Pont's actions complied with past practices and that the majority erroneously narrowly construed NLRB precedent ignoring the rationale of the precedent.

The DC Circuit rejected the Board majority's conclusions, holding that the NLRB departed from past precedent without justification when it found that DuPont's changes to the terms of its plan were unlawful.

The Supreme Court has held that employers generally violate the NLRA when they make unilateral changes to conditions of employment before the parties have reached a bargaining impasse. When bargaining to replace an expired CBA, employers must generally maintain the status quo, which generally means the terms of the recently expired CBA, but may also include past practices outside of the CBA. In NLRB v. Katz, the Supreme Court clarified that an employer may make unilateral changes that are consistent with "longstanding practice" since these changes are a "mere continuation of the status quo."

In Post-Tribune Co. and Courier-Journal, the NLRB adopted this principle in the context of employer's changes to a health plan contribution after a CBA expired, noting that "a unilateral change made pursuant to a longstanding practice is essentially a continuation of the status quo – not a violation of [the NLRA]."

In its decision, the DC Circuit held that, as in Courier-Journal, Du Pont's changes to its employee benefits plan were lawful because they were consistent with its established past practice of making changes at the time of annual enrollment.

The court also noted other recent NLRB decisions similarly stating that, regardless of the survival of the CBA and management rights clauses, employers may make unilateral changes if their conduct is consistent with past practice. The Board majority had not cited or distinguished these cases and improperly failed to provide a justification for departing from its precedent. On remand, the court directed the Board to either conform to its recent precedent or explain its return to a different rule followed before Post-Tribune.

Employers that have longstanding past practices of making unilateral revisions to employee benefit plans can continue to make those changes, regardless of whether their CBAs are current or expired. However, on remand from the DC Circuit, the Board may overrule Post-Tribune Co., Courier-Journal and their progeny and develop an analysis that restricts employer's reliance on past practices to permit unilateral changes.