Employment Law Report
NLRB Reverts to Prior Standard for Implementing Unilateral Changes
In Raytheon Network Centric Systems, 365 NLRB No. 161, the National Labor Relations Board (“NLRB”) issued a ruling affecting bargaining obligations that are required before implementing a unilateral “change” in employment matters. Until 2016, when the NLRB decided E.I. du Pont de Nemours, 364 NLRB No. 113, the NLRB had found that an employer was not obligated to bargain before making unilateral changes when it followed a well-established past practice.
In the 2016 DuPont decision, the NLRB held that even if an employer acted consistently with past practice, if a collective bargaining agreement (“CBA”) had expired and was no longer in effect, bargaining would always be required. Specifically, the NLRB had required the employer to provide the union with notice and an opportunity to bargain prior to implementing any changes if the past practice was created under a management rights clause in a CBA that had expired or if the disputed actions involved employer discretion.
In Raytheon, the CBA expired. Raytheon implemented changes to its health plan, making annual modifications to its benefits and costs as it had done in the past. Following DuPont, the Administrative Law Judge (ALJ) held that Raytheon was obligated to bargain before making those changes. The NLRB reversed and, in the process, overruled DuPont, reverting to its previous test for implementation of unilateral changes. The NLRB held that actions did not constitute a change if they were similar in kind and degree with an established past practice consisting of comparable unilateral actions. Actions consistent with an established practice do not constitute a change requiring bargaining merely because they may involve some degree of discretion.