Update Applicable to:
All employers who have a CBA or a potential CBA negotiation.
The National Labor Relations Board (NLRB) reversed the Raytheon Standard (that allowed the employer to not bargain with a union over changes in working conditions that merely continue its “past regular and frequent practices” and had a lax application in favor of employers) and returned to the Dupont one (limiting the employer’s ability to make changes in working conditions even after a collective bargaining agreement (CBA) has expired).
What are the details?
The National Labor Relations Board (NLRB) recently made significant decisions known as Wendt and Tecnocap rulings, which limit employers’ ability to make changes during first contract negotiations and after a collective bargaining agreement (CBA) has expired. These rulings overrule a 2017 case, Raytheon, which had given employers latitude to make operational changes following the expiration of a CBA.
DuPont: In 2016, the NLRB decided DuPont, which required employers to notify unions and bargain when making changes after a CBA expires, because even if an employer did exactly what it had done previously when the CBA was in effect (or expired), taking the same action would constitute a change.
Raytheon: Later in 2017, Raytheon case reversed DuPont, allowing unionized employers to make unilateral discretionary changes to their employees working conditions when those changes were developed under management-rights clause or otherwise, and were like a past and frequent practices. These changes applied during negotiations of a 1st CBA or expirations of a CBA, without notice and bargaining.
- Wendt Case:
o Wendt laid off employees during initial CBA negotiations, citing past practices.
o The NLRB ruled against Wendt, finding the past practices were not sufficiently regular because “the employer has shown the conduct is consistent with a longstanding past practice and is not informed by a large measure of discretion”.
o This erased the acceptance of employer unilateral discretionary changes and (employers) now provide notice and an opportunity to bargain when exercising discretion during negotiations.
- Tecnocap Case:
o Tecnocap unilaterally implemented shift changes after CBA expiration, citing past practices.
o The NLRB rejected this defense, as the changes were at management’s unlimited discretion. Past practices developed under or pursuant to an expired CBA no longer serve as a defense, and the Board held that “unilateral changes made pursuant to a past practice under an expired management rights clause are unlawful”.
o This erased employers’ unilateral discretion to make changes after a CBA expired.
For more information, please see the links below:
What do employers need to do?
Employers should reassess the regularity of past practices and readjust to the standard of DuPont. These rulings emphasize the need for employers to be more cautious when implementing changes during labor negotiations of a CBA and after the expiration of a CBA.
The Board’s decision might apply retroactively to pending cases, so employers would benefit from seeking counsel from their employment attorney.
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