The Building Tradesman Newspaper

Friday, January 12, 2018

NLRB majority backs company line during bargaining

By The Building Tradesman

By Mark Gruenberg
PAI Staff Writer

WASHINGTON (PAI)—In yet another corporate victory, the three-person Republican majority on the National Labor Relations Board ruled a company can unilaterally change “terms and conditions of employment” – mandatory subjects it must bargain about with workers – even while bargaining is occurring. 

The only caveats, the majority said, are the firm must follow its own past precedents and the changes must be “minimal.” 

The 3-2 ruling on Dec. 15 blows a hole in mandatory subjects of bargaining under labor law. It also overturns a year-old decision, involving DuPont, which the NLRB handed down when it had a Democratic-named majority. GOP-named board Chairman Philip Miscimarra wrote the majority decision, his last before leaving two days later. The board now has a 2-2 party split, awaiting a Republican appointee to re-establish their majority.

The two Democrats now on the board said the new ruling, involving a Raytheon subsidiary, would let any company make any changes to mandatory subjects of bargaining – such as wages and health care – after an old pact expired, while talks for a new one continue. Current law and practice, they noted, is to keep workers toiling under all provisions of the expired contract, unchanged. 

“The majority’s decision is simply wrong when it insists it will ‘do no harm,’” dissenting Democrats Mark Gaston Pearce and Lauren McFerran wrote. “It is clear that permitting employers to change, at their whim and in their sole discretion, significant terms of employment while bargaining over those very terms, is inimical to” – i.e. it severely hurts – “the collective bargaining process, as the Supreme Court” and lower courts have pointed out, the two added.

The Steelworkers challenged the 2013 decision by a Raytheon subsidiary, Raytheon Network Centric Systems, to unilaterally change health care options it offered the 35 unionized production and maintenance workers at its Mansfield, Ind., plant just outside Fort Wayne. 

Raytheon replied it implemented health care modifications every year from 2001-12 without challenge and claimed the right to do it again without bargaining with USW. It said it acted under an old contract clause, in the pact that expired in 2012, which let it unilaterally change terms without bargaining. 

The workers had identified elimination of the contract clause which let Raytheon follow such past precedents as a top bargaining priority.  Raytheon had raised health care premiums for 12 straight years, using that clause, and also “altered premium ratios to the disadvantage of employees,” the NLRB’s two dissenting Democrats said. 

The changes Raytheon implemented were expanding a “wellness award” program and converting a medical insurance plan into a health savings account. The DuPont decision, handed down while the Raytheon case was moving through the NLRB, banned unilateral changes without collective bargaining. With Miscimarra writing the decision, the GOP majority, citing past practice by Raytheon and precedents before 2016, sided with the company. Quoting from his own dissent last year, Miscimarra said firms can make such unilateral changes.

“The board has not required prior bargaining prior to an employer’s minor variations from actions taken in the past,” the majority declared. Even if it did, one footnote added, “The duty to bargain does not compel” either companies or unions to agree to a proposal or even to make concessions.”

“Reversing our recent precedent, a newly constituted board majority gives employers new powers to make unilateral changes” on the job “after a collective bargaining agreement expires,” Pearce and McFerran replied. The board is changing course, they added, even though federal courts are currently reviewing the DuPont ruling, which businesses challenged.