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NLRB Clarifies Duty to Bargain over “Changes” That Are Consistent with Past Practice, Overruling DuPont

Washington, D.C. — The National Labor Relations Board, in a 3-2 decision involving Raytheon Network Centric Systems, issued a ruling today affecting bargaining obligations that are required before implementing a unilateral “change” in employment matters.  Consistent with other Board cases dating back to 1964, the Board held that actions do not constitute a change if they are similar in kind and degree with an established past practice consisting of comparable unilateral actions.  The Board also held this principle applies regardless of whether (i) a collective bargaining agreement (CBA) was in effect when the past practice was created, and (ii) no CBA existed when the disputed actions were taken.  Finally, the Board ruled such actions consistent with an established practice do not constitute a change requiring bargaining merely because they may involve some degree of discretion.  
Today’s decision overruled a case decided last year—E.I. du Pont de Nemours, 364 NLRB No. 113 (2016) (DuPont)—where a divided Board held that actions consistent with an established past practice constitute a change, and therefore require the employer to provide the union with notice and an opportunity to bargain prior to implementation, if the past practice was created under a management-rights clause in a CBA that has expired, or if the disputed actions involved employer discretion.  
In the Board’s ruling today, the Board concluded that the employer’s changes to employee healthcare benefits in 2013 were a continuation of Raytheon’s past practice involving similar unilateral changes made at the same time every year from 2001 to 2012.  Therefore, the Board found the company did not violate the National Labor Relations Act by failing to give its union advance notice and the opportunity for bargaining before making the 2013 changes.  
Chairman Philip A. Miscimarra was joined by Member Marvin E. Kaplan (who also separately concurred) and Member William J. Emanuel in the majority opinion.  Members Mark Gaston Pearce and Lauren McFerran dissented in the case.

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