Dive Brief:

• The National Labor Relations Board (NLRB) recently issued two decisions finding that a unilateral change in employee benefits provided under a collective bargaining agreement was consistent with the agreement and therefore lawful, according to a blog post from Littler, the employment law firm.
• In one decision, the NLRB found that a company’s elimination of retiree medical benefits for future hires was based on a reasonable interpretation of a collective bargaining agreement and, therefore, the company had a “sound arguable basis” for making the change.
• In the other decision, the NLRB affirmed a finding by an administrative law judge after a company eliminated a contractual extended illness benefit and replaced it with a substantially different plan.  The judge found, and the NLRB agreed, that the company had a contractual right to make this change in benefits and, therefore, the union had clearly and unmistakably waived its right to bargain over that issue.  

Dive Insight:

According to blog post author William Emanuel, a Littler shareholder, under the NLRB’s decision in the first case, it appears that the employer will not need to prove that its interpretation of the agreement was correct; it will only need to prove that there was a "sound arguable basis" for that interpretation.

Also, it appears that the employer will not need to prove that the union has waived its right to bargain over the change.  If the employer can prove that its interpretation of the agreement was correct, the NLRB’s affirmance of the administrative law judge's decision in second case should provide additional support for the change, Emanuel writes.

Emanuel notes that these decisions apply only to unfair labor practice charges filed under the Natiaonal Labor Relations Act.  In most cases, a union will also have the option of filing a grievance under a contractual grievance procedure and pursuing arbitration of the grievance.