The Changed NLRB Reasonably Defines “Change”

By Patrick Scully

The new National Labor Relations Board (“NLRB” or “Board”) reversed another Obama Board decision on Friday. In Raytheon Company, 365 NLRB No. 161 (December 15, 2017), the Board returned to long standing precedent that the question of whether an employer has made a “change” should take into consideration the employer’s standing practices. The Obama Board had rejected that interpretation in E.I. du Pont de Nemours, Louisville Works, 355 NLRB 1084 (2010), when it held that because a practice was not set forth in the parties’ collective bargaining agreement, the employer could not continue to exercise the practice after expiration of the agreement. The new NLRB disagreed, finding the DuPont decision inconsistent with the long-standing “commonsense” definition of what is actually a “change” in employees’ terms and conditions of employment. Accordingly, Raytheon was free to make its usual adjustments to health benefits as it had in prior plan years.  It was not required to provide the union with notice and an opportunity to bargain the practice simply because the agreement expired.