Recently, the National Labor Relations Board (“Board”) issued its decision in Raytheon Network Centric Systems, 365 NLRB No. 161 (December 15, 2017), which reinstated the Board’s long-standing policy that there is no duty to bargain over changes to terms and conditions of employment made pursuant to past practice.  This decision overturns the Board’s 2016 decision in DuPont, 364 NLRB No. 113, where a divided Board departed from years of Board precedent and held that actions consistent with an established past practice constitute a change, and therefore trigger the duty to bargain.

In Raytheon, the parties had a collective bargaining agreement (“CBA”) that included the right of the employer to change benefit plans and costs.  The employer had previously exercised this right every year for the previous 12 years.  After the expiration of the most recent CBA, while negotiations for a successor agreement were ongoing, the employer again made unilateral changes to health care benefits as it had done in the past, without bargaining.  The union filed an unfair labor charge, and an Administrative Law Judge ruled in the union’s favor, finding that employer had a duty to bargain under DuPont.

On appeal, a 3-2 majority of the Board reversed DuPont and reinstated the standard that had been in place for decades prior to DuPont.  The Board concluded in Raytheon that bargaining is not required when no “change” has occurred, and that no “change” occurs when the employer takes action that is not materially different from its long-standing past practice even if there is some degree of employer discretion involved.  The Board also held that this principle applies regardless of whether a CBA was in effect when the past practice was created, or no CBA existed when the disputed action was taken.  The Board’s decision in Raytheon, reaffirms the legitimacy and applicability of past practice both during contract negotiations and after the expiration of a CBA.  The Raytheon decision also portends what is likely to be a more employer-friendly shift in Board policy under the current administration.

If you are concerned about memorializing your past practices without committing an unfair labor practice, or if you have any questions about the Raytheon decision or how it may affect your business operations or contract negotiations, please do not hesitate to contact our Labor & Employment Law attorneys.