Employer May Make Benefit Changes In Keeping with Past Practice Under a CBA


The National Labor Relations Board held that an employer did not violate the National Labor Relations Act in unilaterally implementing annual changes to employees’ benefits after the collective bargaining agreement had expired.

As discussed in our December 18, 2017 E-lert, the Board issued Raytheon Network Centric Systems, in which it confirmed that, “Where . . . the employer takes actions that are not materially different from what it has done in the past, no ‘change’ has occurred” and therefore no bargaining is required, even if the CBA under which the past practices occurred has expired. Applying that holding in E.I. Du Pont De. Nemours, Louisville Works, the Board held that an employer’s annual benefit changes pursuant to an expansive management rights clause contained in an expired CBA were consistent with a past practice of annual changes during the term of the CBA, and were thereby lawful. The employer was not required to provide the union with advance notice of the changes or the opportunity to bargain.