NLRB overrules DuPont, changing the unilateral change rules

Raytheon Network (NLRB 12/15/2017) [Decision] has overruled E.I. du Pont de Nemours, 364 NLRB No. 113 (2016) (DuPont) – where the 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.

The NLRB now holds 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 (a) a collective bargaining agreement (CBA) was in effect when the past practice was created, and (b) 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.

In the Raytheon case, the parties' collective bargaining agreement incorporated the right to change benefit plans and costs, and the employer had done so every year between 2001 and 2012. In 2013 the contract had expired, and the employer unilaterally modified employee medical benefits and related costs consistent with what it had done in the past. Under the DuPont rule, that would have triggered a duty to bargain. Now that the Board has returned to pre-existing rules, the employer's action is not considered a "change" over which it must bargain.

This case is the fourth major move by the NLRB this week – just before Chairman Philip A. Miscimarra's term expired on December 16. At that point, the Board will again (sigh) be down to four Members – two Republicans and two Democrats – so it will be some little while before the Board will be making additional policy changes. For the other three, see