In its fifth major decision in five days, the Board overruled a 2016 decision that limited what changes to terms and conditions of employment that an employer can make without bargaining.  In so doing, the Board returned to a broader view of what it means to maintain the “status quo.”  In Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017), the Board held that employers do not need to bargain when “the employer takes actions that are not materially different from what it has done in the past.”  In Raytheon, that meant the employer lawfully modified employee medical benefit plans after the CBA expired because the employer had made similar modifications annually for 11 years.

The 3-2 Republican majority overruled the Obama-Board’s decision in E.I. du Point de Nemours, 364 NLRB No. 113 (2016).  That case held that an employer must bargain over changes to terms and conditions of employment, even if the employer had a past practice of making the changes, if (1) “a CBA permitted the past actions and the CBA is no longer in effect,” or (2) “the employer’s actions involved some type of discretion.”  The Raytheon majority described E.I. du Pont as “distort[ing] the long-understood, commonsense understanding of what constitutes a ‘change.’”

The majority returned to “the dynamic status quo” doctrine, which “makes clear that conditions of employment are to be viewed dynamically and that the status quo against which an employer’s ‘change’ is considered must take account of any regular and consistent past pattern of change.  An employer modification consistent with such a pattern is not a ‘change’ in working conditions at all.”  (Quoting Gorman & Finkin, Labor Law Analysis and Advocacy (Juris 2013)).

As applied to the facts in Raytheon, the majority held the employer did not unlawfully implement a unilateral change when it modified union and non-union employees’ health benefits just as it had done every January from 2001 to 2012.  Those modifications included increased premiums and changes to available benefits—changes that the majority characterized as “typical of the changes one regularly sees from year to year in cafeteria-style benefit plans.”  The fact that the union had specifically requested to re-negotiate health benefits did not change the majority’s analysis.

Recently-appointed Member Kaplan wrote separately to opine that the Act not only permitted the employer to make the changes but required it to do so as part of its duty to maintain the status quo.

Last week, the Board also issued significant decisions affecting appropriate bargaining units, joint employment, work rules, and settlement agreements.  The Board often issues a number of significant decisions in the days leading up to the end of a Board Member’s term; Chairman Miscimarra’s term ended Saturday, December 16.