July 15, 2020

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On A Roll: Board Finds No Bargaining Obligation Attaches to Unilateral Actions Consistent with Past Practice

On the eve of Chairman Miscimarra’s departure, the Board has been churning out decision after decision, many of them reversing precedents from the last 8 years.

Today, the NLRB, in Raytheon Network Centric Systems365 NLRB No. 161 (December 15, 2017), returned to the longstanding law of the NLRB that there is no duty to bargain over “changes” made pursuant to a past practice. The Board expressly overruled a year-old decision in E.I. du Point De Nemours, 364 NLRB No. 113 (2016) (DuPont), and reinstated the law that had existed for years. Now, employers may act consistently with an established past practice regardless of whether the parties’ collective bargaining agreement is in effect or expired.

In Raytheon, the parties had a collective bargaining agreement, as many do, that incorporated the right to change benefit plans and costs. The employer had exercised this right during the term of the contract. In this case, during a contract hiatus period, the employer made unilateral changes to health benefit plans and costs just as it had done in the past.  The ALJ found this to be a violation under the reasoning of DuPont which held that such past practices triggered a duty to bargain.  The employer appealed.

The 3-2 majority (with Members Pearce and McFerran dissenting) reversed DuPont and any cases upon which DuPont relied. Applying the pre-DuPont standard to the facts of the case, the Board held that an employer’s modifications to employee healthcare benefits after contract expiration did not violate the Act because similar changes were enacted every year for the last 12 years.

This result was predictable, of course, and this case falls within the category of “low hanging fruit” in thatDuPont overruled years of past practice law.  This result also was foreshadowed in NLRB GC Robb’s recent memo outlining one priority of the agency as revisiting cases where the law had been changed over dissent during the last 8 years.

The law of past practice was very well-developed prior to DuPont and employers will now be able to make decisions without fear of a bargaining violation so long as it is something that has been a practice.

As Chairman Miscimarra’s term is set to expire Saturday (12/16), this may not be the last we hear from the full-Board until then…

© 2020 Proskauer Rose LLP. National Law Review, Volume VII, Number 350


About this Author

Mark Theodore, Employment Attorney, Proskauer Rose

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

Joshua Fox Labor & Employment Attorney Proskauer Rose

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League Baseball, the National Hockey League, the National Football League, the National Basketball Association, and Major League Soccer in collective bargaining, labor relations issues, such as grievance and salary arbitrations, and wage-and-hour issues.