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The National Labor Relations Board capped off an eventful week on Friday, December 15 by issuing two more opinions overruling existing precedent, this time in the areas of lawful changes in employment matters and the standard for determining appropriate bargaining units.

Changing the Definition of “Change”

In the Raytheon Network Centric Systems opinion issued Friday, a 3-2 Republican majority of the Board overruled the Board’s 2016 decision in E.I. du Pont de Nemours, and reinstated its prior interpretation of when an employer may take unilateral action that is consistent with past practice without providing a union with advance notice and the opportunity for bargaining. Specifically, the Board held that going forward, “regardless of the circumstances under which a past practice developed—i.e., whether or not the past practice developed under a collective-bargaining agreement containing a management-rights clause authorizing unilateral employer action—an employer’s past practice constitutes a term and condition of employment that permits the employer to take actions unilaterally that do not materially vary in kind or degree from what has been customary in the past.” In the Raytheon case, the Board authorized Raytheon’s unilateral changes to employee healthcare benefits in 2013 as a continuation of similar unilateral changes that had been made at the same time every year from 2001 to 2012, despite the fact that the prior changes had been made pursuant to management rights clauses under collective bargaining agreements that were in force at the time of the prior changes but had since expired.

The Board will apply this holding retroactively to all pending cases, and it cautioned that a union’s right to request bargaining regarding all mandatory subjects, including actions the employer may take unilaterally, remains intact and unaffected.

Overturning the Board’s Approach to “Micro-Units”

Also Friday, in PCC Structurals, Inc., the 3-2 Republican majority of the Board reinstated the traditional community-of-interest standard for determining what constitutes an appropriate bargaining unit for union representation cases. Doing so required that the Board overrule Specialty Healthcare & Rehabilitation Center of Mobile, a 2011 decision holding that in cases where a union petitioned for an election among a group of employees who shared a community of interest, and the employer took the position that the smallest appropriate unit must include other employees who were excluded from the unit proposed by the union, the Board would determine whether the petitioned-for unit was inappropriate by examining whether the employer could prove that the excluded employees shared an “overwhelming” community of interest with the proposed unit. Reasoning, in part, that Specialty Healthcare “created a regime under which the petitioned-for unit is controlling in all but narrow and highly unusual circumstances,” the Board now returns to its prior multi-factor test that focuses on “whether the employees in a petitioned-for group share a community of interest sufficiently distinct from the interests of employees excluded from the petitioned-for group to warrant a finding that the proposed group constitutes a separate appropriate unit.

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