NLRB Resets Rules on Past Practice Changes

By Timothy F. Murphy - Skoler, Abbott & Presser, P.C.

February 15, 2018

As the composition of the National Labor Relations Board (NLRB) continues to change under President Trump, the shift from majority Democratic appointees to majority Republican appointees has brought with it some reversals of Board precedent set under the prior administration.  One such reversal occurred at the end of 2017 in a case involving Raytheon Network Centric Systems (365 NLRB No. 161).  The Raytheon case overruled a case decided the previous year — E.I. du Pont de Nemours, 364 NLRB No. 113 (2016) (DuPont) — in which 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.

In overruling DuPont, the Trump Board ruled that actions do not constitute a change if they are similar in kind and degree to 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 just because they may involve an element of employer discretion.

In the Board’s Raytheon ruling, it concluded that its changes to employee healthcare benefits in 2013 were a continuation of Raytheon’s past practice of similar unilateral changes at the same time every year from 2001 to 2012. Accordingly, 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.