Answer to Question 1
In the Allied Chemical Workers v. Pittsburg Plate Glass Co. precedent discussed in the case, the Supreme Court held that retirement benefits for workers who have already retired are not mandatory bargaining subjects because retirees are not employees under the NLRA and are therefore not protected by the Act. That is, the ordinary meaning of employee does not include retired workers; retired employees have ceased to work for another for hire. The employer did not have an obligation to bargain on this subject. It thus is a permissive subject of bargaining. The employer has the option of bargaining, and is not required to bargain on the topic.
Answer to Question 2
Yes. To the extent covered in this edited version of the Court's opinion those unions who did not explicitly waive their rights to negotiate about post retirement health care benefits had the right to bargain over changes to these benefit plans, and the employer's unilateral changes to these mandatory subjects are violations of Section 8(a)(5) and 8(d) of the Act.
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