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Bargaining Obligations Regarding Unilateral Changes

December 19, 2017

By Noah R. Jordan, Esq.

On Friday December 15, 2017, the National Labor Relations Board issued another 3-2 decision, in Raytheon Network Centric Systems, 365 NLRB No. 161.  In that case, the Board held that an employer’s actions do not constitute a unilateral change in working conditions when those actions are similar in kind and degree to an established past practice between that employer and a union regarding similar unilateral actions, regardless of whether the collective bargaining agreement in place when that practice was started had expired when the employer’s action was taken.  This holding clears the way for employers to make unilateral changes without such action being treated as a change in working conditions requiring bargaining prior to implementation.

In so holding, the Board overruled yet another previous decision, this one from 2016 in E.I. du Pont de Nemours, 364 NLRB No. 113.  In that case the Board had held that employers must bargain over any changes to working conditions consistent with a past practice if that practice had been created pursuant to a management rights clause in an expired collective bargaining agreement or if the change involved employer discretion.

Why this decision is important for you: Once more, this decision expands the rights of employers and rolls back those of unions and employees.  Under this holding, employers will have greater flexibility in making unilateral changes to employees’ working conditions without first having to bargain with unions.  Employers now will be able to make changes based on practices in place under previous collective bargaining agreements even if new agreements have since been agreed to.

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