DuPont Specialty Products USA, LLC, as a successor to E.I. du Pont de Nemours and Company

National Labor Relations Board - Board Decisions

Jul 8, 2020

369 N.L.R.B. 117 (N.L.R.B. 2020)

369 NLRB No. 117
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
DuPont Specialty Products USA, LLC, as a successor
to E.I. du Pont de Nemours and Company and
Ampthill Rayon Workers, Inc., Local 992, Inter-
national Brotherhood of DuPont Workers. Case
05–CA–222622
July 8, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On October 11, 2019, Administrative Law Judge David
I. Goldman issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
1 The Respondent has excepted to the judge’s refusal to allow it to
introduce expert testimony regarding workplace-safety regulations at the
Spruance site, hazards present there, and measures to mitigate. “[T]he
Board accords judges significant discretion in controlling the hearing and
directing the creation of the record.” Cadillac of Naperville, 368 NLRB
No. 3, slip op. at 1 fn. 1 (2019). Specifically, “[w]hether to permit expert
testimony is a question that is committed to the discretion of the trial
judge.” California Gas Transport, 355 NLRB 465, 465 fn. 1 (2010).
We find that the judge did not abuse his discretion by refusing to per-
mit the testimony. The record clearly establishes, and it is undisputed,
that there are significant hazards at the Spruance plant. The judge did
not err in concluding that the probative value of the expert testimony the
Respondent sought to introduce would be marginal because that testi-
mony would be largely cumulative of the testimony of Robert Lukhard,
the Respondent’s chief of emergency services, who testified about the
dangers present at the site. The Respondent’s reliance on Glen Falls
Building & Construction Trades Council (Indeck Energy), 325 NLRB
1084, 1087 (1998), is misplaced. In that case, the Board found that the
judge should have allowed expert testimony to help resolve the difficult
question of whether the respondent, which was developing a multimil-
lion dollar steam-and-electricity “cogeneration” facility, was an em-
ployer in the construction industry within the meaning of the proviso to
Sec. 8(e) of the Act. In finding that the judge erred, the Board explained
that “there are only a very limited number of relevant Board decisions
and none of them involve the construction of a cogeneration plant or a
project of similar magnitude.” Id. Here, in contrast, the judge reasona-
bly concluded that expert testimony was unnecessary to help resolve the
relatively commonplace issue of whether a subcontracting decision in-
volved a mandatory subject of bargaining.
The Respondent also excepts to the judge’s ruling rejecting its request
to admit a hazard-analysis document under seal and to seal the hearing
room during its admission. The judge left the Respondent free to intro-
duce the document into evidence unsealed. The Respondent declined to
do so and instead elicited testimony from Lukhard. Again, we find that
the judge did not abuse his discretion. Because it is undisputed (and Lu-
khard’s testimony and other evidence establishes) that there are signifi-
cant industrial hazards at the plant, the document’s probative value
would have been slight. And the judge reasonably decided that the doc-
ument’s marginal relevance was outweighed by the administrative bur-
dens associated with a seal.
Counsel filed an answering brief, and the Respondent filed
a reply brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,1 find-
ings,2 and conclusions3 and to adopt the recommended Or-
der as modified.4
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, DuPont Specialty
Products USA, LLC, as a successor to E.I. du Pont de
Nemours and Company, Richmond, Virginia, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
Replace paragraph 2(g) with the following:
(g) Post at its facility in Richmond, Virginia, copies of
the attached notice marked “Appendix.”5 Copies of the
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings. In addition, some of the Respondent’s exceptions
imply that the judge’s rulings, findings, and conclusions demonstrate
bias and prejudice. On careful examination of the judge’s decision and
the entire record, we are satisfied that the Respondent’s contentions are
without merit.
3 In affirming the judge’s unfair labor practice findings, we do not
rely on the judge’s reading of Sociedad Española de Auxilio Mutuo y
Beneficiencia de P.R., 342 NLRB 458, 469 (2004), enfd. 414 F.3d 158
(1st Cir. 2005), to the extent he suggests the Board there held that an
employer’s inability to recruit qualified employees can never remove a
subcontracting decision from the scope of mandatory bargaining.
The judge acknowledged that the building the Respondent constructed
to house contractor employees cost up to $200,000, but he did not men-
tion this cost when analyzing the Respondent’s capital expenditures. We
find that this expenditure did not remove the decision to subcontract unit
work from the scope of mandatory bargaining. See Bob’s Big Boy Fam-
ily Restaurants, 264 NLRB 1369, 1371 (1982) (finding that capital trans-
actions valued at $30,000 in connection with subcontracting were not
substantial enough to relieve the employer of its obligation to bargain
over its subcontracting decision); Whitehead Bros. Co., 263 NLRB 895,
898‒899 (1982) (finding company had duty to bargain over decision to
subcontract delivery of its products and terminate its trucking operation,
notwithstanding that the decision entailed rejection of a proposed capital
investment).
4 We shall modify the judge’s recommended Order (as modified by
his errata of October 21, 2019) in accordance with our recent decision in
Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). At the
compliance stage of these proceedings, the Respondent may introduce
evidence that restoration of the unlawfully subcontracted work would be
unduly burdensome, provided the evidence was unavailable prior to the
unfair labor practice hearing. St. Vincent Medical Center, 349 NLRB
365, 367 fn. 5 (2007); Lear Siegler, Inc., 295 NLRB 857, 861‒862
(1989).
5 If the facility involved in these proceedings is open and staffed by a
substantial complement of employees, the notices must be posted within
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
notice, on forms provided by the Regional Director for Re-
gion 5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any
time since June 19, 2018.
Dated, Washington, D.C. July 8, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Andrea J. Vaughn, Esq., for the General Counsel.
Kenneth Henley, Esq. (Law Office of Kenneth Henley) of Boca
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed due to the Coronavirus Disease 2019 (COVID-19)
pandemic, the notices must be posted within 14 days after the facility
reopens and a substantial complement of employees have returned to
work, and the notices may not be posted until a substantial complement
of employees have returned to work. Any delay in the physical posting
of the paper notices also applies to the electronic distribution of the no-
tice if the Respondent customarily communicates with its employees by
electronic means. If this Order is enforced by a judgment of a United
States court of appeals, the words in the notice reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
1 In the portion of the charge filled in by Region 5 personnel (top right
corner of GC Exh. 1(a)), the charge is listed as being filed on June 18,
2018. Based on (1) the representations of counsel (Tr. 11), (2) the dec-
laration supporting the charge indicating the charge was filed June 21,
Rotan, Florida, for the Charging Party.
Theresa A. Queen, Esq. and David Barger, Esq. (Greenberg
Traurig, LLP) of McLean, Virginia, for the Respondent.
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case
considers an employer’s statutory duty to bargain with its em-
ployees’ union over the subcontracting of emergency services
work historically performed by employees at the employer’s
synthetic fiber production facility.
The government and the union allege that the employer’s ad-
mitted refusal to bargain over the subcontracting decision vio-
lated the employer’s bargaining obligations under the National
Labor Relations Act (Act). The government and the union fur-
ther contend that the employer’s subsequent unilateral imple-
mentation of the subcontracting decision also violated the Act.
The employer argues that the subcontracting decision and imple-
mentation were outside the ambit of Act’s bargaining obliga-
tions. For the reasons discussed herein, I agree with the govern-
ment and the union find that the employer violated its bargaining
obligations under the Act.
STATEMENT OF THE CASE
On June 21, 218, the Ampthill Rayon Workers, Inc., Local
992, International Brotherhood of DuPont Workers (Union or
ARWI) filed an unfair labor practice charge alleging violations
of the National Labor Relations Act (Act) by DuPont, Inc., dock-
eted by Region 5 of the National Labor Relations Board (Board)
as Case 05–CA–222622.1 Based on an investigation into this
charge, on November 28, 2018, the Board’s General Counsel
(General Counsel), by the Region 5 Acting Regional Director,
issued a complaint and notice of hearing in this case. The Em-
ployer filed an answer denying all violations on December 12,
2018, and an amended answer on May 31, 2019.
A trial in this matter was conducted June 4–6, 2019, in Rich-
mond, Virginia.2 A posthearing joint motion of Counsel for the
General Counsel and Counsel for the Respondent to correct the
transcript was granted by order dated August 8, 2019. Counsel
for the General Counsel and the Respondent filed post-trial briefs
in support of their positions by August 12, 2019. Counsel for the
2018, (3) the attachment to the charge alleging an announcement on June
20, 2018, as a basis for the charge, and (4) the undisputed record evidence
that key events on which the charge was based occurred on June 18 and
19, 2018, I find that the charge was filed June 21, 2018.
2 At the commencement of the hearing, the General Counsel moved
to amend paragraph 5(b) of the complaint to correct an error in the date
pled for the final effective date of a collective-bargaining agreement.
This unopposed motion to change the date from August 1 to September
1, 2018, was granted. Further, at the commencement of the hearing, the
Respondent admitted the supervisory and agency status under the Act of
Andre Holmes, Darrin Meenach, and Cheryl Yanoschak. (Tr. 12–14.)
Finally, at the hearing, the parties agreed that the correct name of the
Respondent is DuPont Specialty Products USA, LLC, as a successor to
E. I. du Pont de Nemours and Company (Tr. 8, 183–185), and the caption
is amended to reflect this. Throughout this decision the Respondent is
referred to as DuPont or Employer or Respondent.
DUPONT SPECIALTY PRODUCTS USA, LLC 3
Respondent filed a letter of supplemental authority on September
20, 2019. Counsel for the General Counsel filed a response on
September 30, 2019.
On the entire record, I make the following findings, conclu-
sions of law, and recommendations.
JURISDICTION
At all material times, the Respondent has been a corporation
with an office and place of business in Richmond, Virginia, and
has been engaged in the business of manufacturing synthetic fi-
bers and related products. In conducting its operations during
the 12-month period ending October 31, 2018, the Respondent
sold and shipped from its Richmond, Virginia facility goods val-
ued in excess of $50,000 directly to points outside of the State of
Virginia. It is alleged and admitted that at all material times the
Respondent has been an employer engaged in commerce within
the meaning of Section 2(2), and (6), of the Act. It is further
alleged and admitted that at all material times the Union has been
a labor organization within the meaning of Section 2(5) of the
Act. Based on the foregoing, I find that this dispute affects com-
merce within the meaning of Section 2(7) of the Act, and that the
Board has jurisdiction of this case, pursuant to Section 10(a) of
the Act.
UNFAIR LABOR PRACTICES
Findings of Fact
A. Background
DuPont has operated the Spruance plant, located along the
southern border of the city of Richmond, in Chesterfield County,
Virginia, since 1929. The site is comprised of over 500 acres
and currently includes some production by other or related com-
panies. For many years—longer than 45 years, as testified to by
the witness in our hearing with the most seniority— the three
major products produced at the Spruance plant by DuPont have
been the synthetic materials Kevlar, Tyvek, and Nomex. Two
additional major products—Zytel and Mylar—are produced on-
site by separate or related companies. The Spruance plant oper-
ates with four rotating shifts, and a fifth fixed-day shift. On this
basis, the plant is in production 24 hours a day, 7 days a week.
Since 1947, the production and maintenance employees at the
plant have been represented for purposes of collective bargaining
by the ARWI. Currently the Union represents about 1,000 pro-
duction and maintenance employees. In addition, the ARWI rep-
resents a separate bargaining unit at the facility currently com-
posed of less than 100 clerical, technical and office employees at
the facility. The International Brotherhood of Electrical Work-
ers (IBEW) also represents a bargaining unit of instrument and
electrical workers. The Mylar plant onsite has an independent
union representing employees. In total there are approximately
3 The bargaining unit covered by the 2015 and 2018 Agreements is
composed of the following Spruance plant DuPont employees:
All production, maintenance, service and Plant technical hourly wage
roll employees at the Plant included within the unit appropriate for col-
lective bargaining purposes certified in an order of the National Labor
Relations Board in cases Nos. 5‒R‒2724, 5‒R‒2773, 5‒R‒2791 bear-
ing date of January 31, 1947, but excluding all employees classified as
instructors, instructresses, security officers, United Service Employees,
2000 employees at the plant, but a significant number are non-
bargaining unit “exempts,” i.e., clerks, technical operators, and
engineers.
The ARWI and DuPont have negotiated numerous collective-
bargaining agreements over the years covering the terms and
conditions of bargaining unit employees. A September 2012
agreement covering the production, maintenance, service, and
technical wage roll employees was renewed in 2015 (the 2015
Agreement). A new agreement for this unit was negotiated dur-
ing the summer of 2018 and went into effect on September 1,
2018 (the 2018 Agreement). That agreement is scheduled for
termination no earlier than August 21, 2022.3
In addition to impromptu meetings as necessary, the ARWI’s
executive committee regularly meets twice a month with the Em-
ployer to discuss labor-management issues arising during the
term of the contract that are not directly part of the grievance
procedure. As the union chairman for the executive committee,
Donny Irvin, explained, the committee “handle[s] the day-to-day
operations at the plant. So any rule, procedure, anything that
needs to be bargained that’s not contractual comes to the exec
committee.”
The chemicals and production processes involved in the
plant’s production carry a potential for risk of employee and
even community injury. The risk of fire, explosion, or exposure
to toxic chemicals is taken seriously by all involved with the op-
eration of the plant. Over the years there have been incidents
that led to groups of employees having to, at least, be evaluated
at the hospital. At the same time, as far as the record shows, the
use of these chemicals and processes at the plant has been
longstanding, and inherent to the production processes. There
were no changes in this regard in many years. DuPont maintains
an extensive array of safety-related and emergency-related pro-
tocols and procedures, including beginning each meeting, no
matter the subject, with some reference to a safety issue. This is
called a “safety contact.”
B. DuPont’s emergency services
For many years, at least since 1974, and until the recent uni-
lateral subcontracting that is the source of the instant dispute,
DuPont maintained an emergency response team (ERT) at the
Spruance plant composed largely of bargaining-unit employees
from the Union.
The Spruance Plant ERT was composed of a fire brigade, haz-
mat team, and a medical emergency response team (MERT).
The MERT members had EMT level B training to provide first-
aid and medical care for illness and injury in incidents short of
IDLH events. The ERT (fire and hazmat) and MERT were sep-
arate until approximately 2008, when they merged under the
heading ERT. The ERT’s function was to respond to emergency
calls at the site, including conditions caused by adverse weather,
employees when working as relief supervisors and supervisors-in-train-
ing, and all supervisory employees set forth ln said cases with the au-
thority to hire, promote, discharge, discipline or otherwise effect
changes in the status of employees or effectively recommend such ac-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
gas releases, smoke alarms, fires, spills, rescues, medical first
aid, and other emergencies. The fire brigade responded through-
out the facility and was often activated by someone pulling one
of the fireboxes situated throughout the facility. MERT was re-
sponsible for any type of medical emergency and responded to
firebox pulls but also to a medical emergency number on the
plant’s internal phone exchange.
A central fire station housed a hazmat truck and a pumper
truck, and there was additional firefighting equipment in trailers
by the fire station. MERT had an ambulance and each MERT
member carried their own “MERT bag” with needed medical
supplies.
Routinely the ERT members responded to reports of smoke,
or flames, and employee accidents and injuries. In many cases
these were small matters—for instance the smoke might be de-
termined to have come from a motor or belt that was misfiring
or burning up—but, of course, any such report had to be investi-
gated. In the more unusual case—arising a few times/year”—
that involved a serious fire or incident “immediately dangerous
to life or health” (IDHL), fire and emergency medical services
from the city of Richmond or Chesterfield County were called in
to take over. The ERT captain on duty was usually charged with
assessing whether the ERT would need backup.4
The parties agree that no governing laws or regulations require
that DuPont maintain an ERT. Nor do any of DuPont’s internal
policies.
Until it was subcontracted to a contractor named FDM on Sep-
tember 1, 2018, DuPont’s ERT served as a first-line responder
for the entire Spruance facility. This included the separately op-
erated Zytel and Mylar plants onsite as well as the plant utilities
operation that since February 2018, has been run by a company
called Veolia.
The ERT was staffed by bargaining unit employees—mostly
from the ARWI, and about six to eight from the IBEW unit—
and also by a few “exempt” nonunit employees who volunteered
to train for and participate in the fire brigade and MERT units.
In the spring of 2018, there were approximately 52 total mem-
bers, 29 in the fire brigade and 23 with MERT. As of September
1, 2018, there were approximately 40‒50 employees who were
members of the fire brigade and hazmat and somewhat less than
20 on the MERT group.5
Each of the plant’s rotating 8-hour shifts (shifts A, B, C, and
D) was staffed to ensure there was sufficient ERT presence 24/7
4 According to documents prepared by DuPont for discussion with
the Union (GC Exh. 14 at 4), in 2016, the ERT responded to 721 calls
and in 2017, it responded to 657 calls. In both years, the overwhelming
bulk of the ERT calls involved evaluating confined space permits. Fires
accounted for 2 and 3 percent of the calls; medical constituted 6 and 8
percent. Here, I reproduce the data set forth in the Respondent’s June
14, 2018 (GC Exh. 14 at 4) memo on the subject:
What is the breakdown of the calls that Emergency Service’s responds
to? Data for the past 2 years is as follows:
2016 2017
Total Calls 721 657
Confined Space Permits 568 (79%) 479
(73%)
Investigations 24 (3%) 57
(9%)
at the plant. (The permanent day shift—to which many senior
employees gravitated over time—did not have a fire brigade, alt-
hough it did have a MERT group.) There was a requirement of
between six and eight fire and hazmat employees per shift, and a
minimum of two per shift for the MERT side.
Like a community volunteer fire department, the ERT-
member employees worked their regular production, mainte-
nance, or other jobs at the facility, and responded to a possible
medical or fire emergency when they were at work and an alarm
or other call went out for their services. In the fire brigade, an
employee typically began as a firefighter and with additional
training could progress to a pump operator, then a lieutenant, and
ultimately to the highest role for unit employees, captain. A
chief supervised the ERT and he was a nonbargaining unit su-
pervisor.
ERT members came from all the different areas of the plant,
for a variety of reasons. As the Union’s Executive Committee
Chairman Irvin testified, “We tried to come up with a plan that
would evenly disperse the membership across the site,” which
lessened the response time, heightened the ability of the plant to
continue running with remaining staff during an ERT incident,
and met DuPont’s concern that the cost of the ERT be dispersed
through the cost centers attributed to the various product lines.
In addition, as Irvin explained:
It was always important to us that we had people from the area
responding because they would be the most knowledgeable
people of the area. . . . [E]very area had its own hazard and it
was most beneficial so that when the whole brigade responded,
you had a resident expert that was there that knew about the
hazards and . . . where they were, where to turn them off, and
it was just was really important to us.
Although employees “volunteered” for the ERT jobs, the
work was paid. Employees were paid for their time training, for
completing certifications, and for responding to calls. Pay was
based on their regular salary. Because it was in addition to their
regular work at the plant—which itself might include overtime
pay—much of the emergency services work was paid at overtime
rates. Each individual’s daily or weekly entitlement to overtime
pay for ERT work was based on his or her overall hours. For
some employees, the ERT provided a lucrative source of addi-
tional hours and overtime pay over the course of the years. Alt-
hough employees chose to be on the ERT, they could be
Medical 46 (6%) 55
(8%)
Fire Alarms 49 (7%) 33
(5%)
Fire 12 (2%) 18
(3%)
Miscellaneous 16 (2%) 10
(1%)
HazMat 5 (1%) 5
(1%)
5 I am not confident of the accuracy of these numbers, although the
precise numbers are not critical to the case. I note that R. Exh. 28, which
is undated, but which was composed sometime after March 26, 2018,
lists 27 fire/hazmat/CS members and 23 EMS members.
DUPONT SPECIALTY PRODUCTS USA, LLC 5
disciplined and/or removed if they failed to perform their duties
including attending or completing required trainings. Comple-
tion of all the training required for new or prospective ERT mem-
bers could take up to a year of monthly course work and practical
training until they were ready. Through a combination of over-
time in their regular production or maintenance job, and over-
time performed on ERT, ERT employees were some of the high-
est paid employees at the plant.
The provisions of the ERT program and changes to it were
routinely negotiated with the ARWI executive committee. In
one instance, in 2007, the parties entered into a settlement agree-
ment after a dispute over a proposed decrease in training hours
for the fire brigade. After months of dispute, the Union agreed:
that the parties have reached the point of impasse after 18 meet-
ings with respect to the bargaining concerning the Emergence
Response Team (ERT) that has been ongoing since December
2007, and the Union agrees that it will not object to the Com-
pany implementing the ERT training hours proposal [as at-
tached].
In exchange for the Union’s agreement the Company prom-
ised that:
current ERT members will be made whole by providing train-
ing opportunities . . . for the months of February and March
2008, [however,] [i]n the event the NLRB Regional Director
determines backpay is appropriate in lieu of training opportu-
nities . . . that determination will supersede the Company’s ob-
ligation to provide make-up training opportunities for current
team members for February and March 2008.
More frequently, the bargaining over ERT was routine and
agreements accomplished without dispute. Monthly training
schedules were developed by DuPont and then approved by the
Union’s executive committee. In recent years, there had been
extensive bargaining over changes made to ERT overtime pol-
icy. In 2016, a new fire captain, Terry DeGuentz, pushed for
adoption of more strenuous qualification requirements. A
change from local training standards to a national “Pro-Board”
certification for ERT firefighters was discussed and bargained
with the Union. However, when employees had difficulty pass-
ing the training, at some point in 2017, management bargained
with the Union a limit of three chances for an applicant to take
the Pro-Board test for firefighter. At one point, in response to
staffing concerns, management and the Union even discussed the
possibility of requiring employees to apply for the fire brigade.
Ongoing staffing difficulties led to further ERT bargaining. In
the Spring of 2017, after negotiations in which DuPont feared
that a bargaining impasse would be likely (GC Exh. 15 at 12),
there were agreements reached between the Union and DuPont
to permit the use, in prescribed circumstances, of Chesterfield
County firefighters to fill out the roster of the ERT when insuf-
ficient employee members could be induced to sign up for par-
ticular shifts.
In response to persistent Union demands to create an ERT on
the permanent day shift, in 2017, DuPont agreed to establish a
daytime fire brigade, but the details were not worked out before
the subcontracting in this case rendered the issue moot.
C. ERT problems
Richard Lukhard, a veteran of the Chesterfield County Fire
and EMS, became Spruance’s chief of emergency services—
more colloquially referred to as the fire chief—in July 2017. Lu-
khard replaced Terry DeGuentz, who left in April 2017.
At the hearing, Lukhard testified to the difficulties that
DuPont was having staffing the ERT. There were not enough
applicants, and a number of the applicants could not pass the
training, or once beginning training had withdrawn from the pro-
gram. As employees who were on the fire brigade retired,
DuPont had some difficulty replacing them. Between 2016 and
2018, there were periods of time when there were vacancies in
the ERT fire brigade which DuPont had trouble filling.
Lukhard testified that the practical portion of the Pro-Board
testing was done at Louisiana State University (LSU) and there
was significant expense in having to transport applicants there,
particularly because a number of applicants were failing the Pro-
Board testing multiple times. Lukhard first proposed in Septem-
ber 2017, limiting the number of times an applicant could take
the Pro-Board test and eventually did away with Pro-Board test-
ing altogether, after creating graphs for his direct supervisor—
Cheryl Yanoschak—making the case that “we could do training
for the brigade just as efficiently locally without having to go to
LSU and not be Pro Board certified.” Lukhard also expressed
concern that even for employees interested, and dedicated and
capable, “getting the experience is very difficult.” He testified:
“There is not a lot of calls for service or emergency calls thank
goodness to run. But so you can go through training and you can
do all the required training, but you still don’t have the real-world
experience of going out there and dealing with . . . these emer-
gencies.” Another problem described by Lukhard was that at
times ERT members were performing critical work in their reg-
ular position and could not leave work to address an ERT call.
If there were insufficient ERT members on staff on a given shift
this could create a problem with ERT responses.
Lukhard testified that apart from the problems of Pro-Board
testing, he viewed with concern what he saw as a decreasing pool
of employees interested in being on the ERT. Due to retirements
and departures “there was not a very good field of folks that
could train up or that were interested in training up to become
officers, lieutenants and captains and shift commander.” Lu-
khard testified that “I didn’t see a good pool of folks coming up
that the desire and/or the potential to fill those officer vacancies
and critical positions.” In particular, there was trouble staffing
the officer positions on the fire brigade—the lieutenants and the
captains. DuPont Program Manager Darrin Meenach attributed
this to the fact that those positions require more expertise, more
training and “substantial leadership to make the right calls and
lead the teams.”
D. The decision to subcontract emergency services
Sometime in the spring of 2018, DuPont made the decision
that beginning September 1, 2018, it would subcontract the Spru-
ance plant emergency services work to a company called FDM.
This decision was made without disclosing the matter to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
unions until mid-June.6
Lukhard laid claim to initiating the idea and looking into its
feasibility. He testified that the subject of contracting out the
ERT first came up between him and his direct supervisor, Ya-
noschak, “in December time frame of 2017,” at which time he
started doing “a lot of the background leg work to see if it was
even feasible.” Lukhard testified that his “actual recommenda-
tion” to management that the ERT be contracted out occurred in
the “early March [2018] time frame,” or into April, when he gave
a power point presentation to the “the senior leadership team,
although “[o]bviously, I had conversations with my direct super-
visor, Cheryl Yanoschak, prior to that presentation.”
The record does not state who this “senior leadership team”
was (Lukhard does not say). Other than a power point presenta-
tion (discussed below), there is no documentation of what was
said to them. Of the Respondent’s three witnesses at the hearing
(Holmes, Meechan, and Lukhard), only Lukhard testified to in-
volvement in the decision. But the evidence shows that the mat-
ter was presented up the ladder—to Lukhard’s supervisor, Ya-
noschak, to “somebody in corporate” named Kimberly Richard-
son, and to L.G. Tackett, who was interim plant manager but re-
ferred to in documentation as the global operations manager of
safety and construction. Once a Spruance plant manager was
named, Tackett was the individual to whom the Spruance plant
manager reported. Based on internal DuPont documents, other
DuPont managers were involved in the decision. On April 24,
Yanoschak sent an email to Tackett seeking his approval to move
forward with the contracting out plan.7 Tackett responded to
this request for approval by asking for a summary of the proposal
that he could share with other managers: “Cheryl, can you put
me a couple-page summary on this I can share with Rose and
Brent. Perhaps I can set a call up and you can share.”
DuPont Human Resources Manager Andre Holmes, then chief
bargainer for DuPont at Spruance, later wrote an email on July
11, 2018, in which he declared that the subcontracting decision
had been approved by Rose Lee, VP of Safety and Construction,
and by Tackett.
Neither Yanoschak, nor Tackett, nor Lee, nor Richardson, nor
Brent, testified at the hearing.
Thus, although he was not the decision maker on the
6 I note that throughout this decision I use the terms “contracting out”
and “subcontracting” interchangeably to describe the Respondent’s plan
to use FDM to perform emergency services work historically performed
by the Respondent’s employees.
7 Yanoschak wrote:
Bobby Lukhard and I spoke with both Kimberly Richardson and the
Spruance Labor Team yesterday to bring them up to speed on where
we are with our Emergency Services Future State and Contingency
Plan. We are now ready to move forward with getting a contract in
place with FDM to provide contract emergency services personnel and
begin spending to get the 12 contract personnel hired, trained and in
place as our contingency plan (strike or otherwise). The current esti-
mate is that it will take 75-90 days to get “ready” state (15-30 days to
get a contract in place, 30 days to get personnel hired, and 30 days to do
all the training we can off-site) Once FDM gets all 12 folks hired, we
will be spending at a rate of $60M/month and will carry that added cost
until bargaining is completed or we are forced to put the contract team
in place and not pay for DuPont staffing. Both Kimberly and the Spru-
ance Labor Team support our plan and us moving forward
subcontracting, Lukhard’s opinion as to why he was in favor of
the contracting out was the only one presented at the hearing. To
summarize, Lukhard testified that he made the recommendation
to contract out the ERT based on the “potential significant haz-
ards” used, stored, and transported on site, “challenges with
staffing . . . especially with the critical leadership positions,” and
difficulty obtaining experience for new ERT members. Lukhard
complained of lack of physical fitness of some of the ERT mem-
bers and recruits, and cited a few examples of what he viewed as
inadequate performance by ERT members.8 Based on all of this,
Lukhard testified that he made “the recommendation that we
should bring contract, dedicated folks that already had experi-
ence.”
In addition at the hearing, Lukhard made a point of claiming
that, at least as far as he was concerned, the decision to contract
out, “had nothing to do with money from my perspective, be-
cause I didn’t even know what the cost involved was going to be
when I first . . . started working on the recommendation.” Ac-
cording to Lukhard,
It had everything to do with the inability to recruit qualified ex-
perienced members, and the . . . concern with the hazards on
the site and the potential emergencies that could occur and not
having qualified folks and not seeing any answer, quick answer
to the lack of sustainability of the system. . . . [T]o me it was an
unsustainable system that had been the victim of just time and
the change in the world today with volunteerism and people
stepping up that want to help.
Notwithstanding Lukhard’s testimony as to his own motiva-
tions, the documentary evidence makes clear that in the spring of
2018, as DuPont finalized its plans (in secret from the Union) for
subcontracting the emergency services work, the associated cost
savings were not an insignificant consideration.
In his testimony, Lukhard suggested (Tr. 524) that in recom-
mending the subcontracting to DuPont leadership he presented
them with a power point demonstration in the spring of 2018. He
did not specifically identify the power point presentation but
there are two in the record from that time period.
A March 15, 2018 five-slide power point for a Spruance staff
meeting—each page of which was marked “confidential”—set
immediately. Do we have your approval to drive forward? [Original
Emphasis.]
Lukhard admitted speaking with Richardson. However, he denied
speaking about the subcontracting to the “Spruance Labor Team.” I note
that Yanoschak’s email is the first suggestion that DuPont viewed the
subcontracting as part of a collective-bargaining strategy, with imple-
mentation planned for the expiration of the current labor agreement, ei-
ther in response to a strike or the completion of bargaining.
8 At Yanoschak’s direction, in mid-2018—well after the subcontract-
ing decision had been made and announced—Lukhard started document-
ing “serious issues,” many related to staffing, that the ERT was having.
This document (R. Exh. 37) listed five incidents discovered or researched
by Lukhard in May and June 2018, where an ERT team member was late
or failed to show up for a training or shift. This list was created after the
decision to contract out was made, and after the Union’s unfair labor
practice had been filed, surely in defense of both.
DUPONT SPECIALTY PRODUCTS USA, LLC 7
out a proposal for two options for contracted emergency ser-
vices. (GC Exh. 12.) Option 1 provided for 9 firefighters each
working 3-person 24-hour shifts, with 3 DuPont exempt employ-
ees performing the roles of shift commanders to the FDM staff.
Option 2 provided for 12 firefighters working 3-person 12-hour
shifts, with 4 DuPont exempt employees performing the roles of
shift commanders to the FDM staff. Slide 3 of this power point
was titled “Summary of Costs.” It stated:
Summary of Costs
 Current Costs = $2.0MM
o Training
o Staffing & Confined Space Overtime
o Fire Inspector Position
 Immediate cost reduction from elimination of Pro-
Board Training and Testing = $350M spent over past
2 years
 Contract Option 1 (24hr) = $980M Savings= $1.0MM
Annually*
 Contract Option 2 (12hr) = $1.3MM Savings = $675M
Annually
*Note: There is a one-time cost associated with Option 1 to
provide living quarters for 24-hr personnel = $175M
The next page of the power point presentation (slide 4) listed
the “Soft/Added Benefits” of the contracting out. This page
listed the elimination of “Fatigue Risk Management implemen-
tation issues,” the “rededication” and “focus[ ]” of DuPont
hourly employees to their area assignments, the creation of
“Dedicated and Experienced Full-Time Emergency Respond-
ers,” the ability to do “Continuous training . . . mostly on-site
during normal work hours,” faster response times, and “en-
hanced . . . rescue planning support.”
A final slide (slide 5) lists “concerns & risks,” noting “poten-
tial walkout of current members when discussion of contracting
starts,” and also a concern with “contract staffing turnover,”
which it is also noted “should be mitigated if we can offer [a] 24-
hours on/48-hours off shift schedule.”
The above cost projections were restated in an updated power
point dated April 24, 2018, created by DuPont. (GC Exh. 13),
and perhaps by Lukhard. See, Tr. at 524. The updated Power-
Point was similar to the earlier March 15 PowerPoint, but re-
flected DuPont’s decision to go with Option 1 for contracted
emergency services, entailing the 24-hour shifts. As to costs it
stated:
Summary of Costs
 Current Costs = $2.0MM
o Training
o Staffing & Confined Space Overtime
o Fire Inspector Position
o Future State Option = $1.0MM Savings= $1.0MM
Annually
 One-time costs associated with the transition:
 On-site living quarters for 24-hr personnel =
$175-200M capital
 Contingency Plan (Strike or Walk Out) =
$75M/month in cost
o 75-90 days to get contract in place, complete
hiring and provide initial training. Will then
have "carrying" cost each month that DuPont
staffing remains in place when contract team
is set up and ready to go
The April 24 version—also sent with a warning to “maintain
confidentiality”—reflected that DuPont had chosen to use 12 to-
tal contracted employees—9 firefighters each working 3-person
24-hour shifts, with 3 DuPont exempt employees as shift com-
manders. The power point restated that there would be cost sav-
ings of $1 million annually by moving to the contracted emer-
gency services, and also noted two “one-time costs associated
with the transition”: first, a cost of $175‒200,000 to create on-
site living quarters for the contract employees working 24 hour
shifts, and second, a $75,000 a month cost for the summer of
2018 to ready the contract employees in the event of a “strike or
walk out” by unit employees before September 1, 2018.
An email accompanying the March 15 and April 24 power
point was sent by Yanoschak to then HR Manager and chief bar-
gainer Holmes, DuPont Program Manager Darrin Meenach (who
also had collective-bargaining and labor agreement implementa-
tion responsibilities at Spruance), labor consultant Valerie Ja-
cobs, and Mary Anne Sparks, a DuPont labor relations analyst.
In the email, Yanoschak instructed the group to keep the power
point presentations confidential and not to share their contents
with anyone other than Jacobs, Lukhard, Yanoschak, Tackett,
and John Lee (unidentified in the record), and Sparks.
Other evidence of the centrality of the cost savings to the de-
cision to subcontract is found in an April 27, 2018 email ex-
change on which Lukhard and Yanoschak were copied. In it,
Tackett approved a “cost sourcing variance request” requested
by Lukhard, but prepared by DuPont contract administrator
Keith Jenkins writing under Lukhard’s name. The document,
which appears to present justification for failing to seek compet-
itive bids for the contract with FDM to staff the fire and emer-
gency services, states:
Variance Impact on Requesting Business (benefits or neg-
atives as a result of this variance):
Comments From Requestor:
One month time frame for bidding, contract issue,
and site training to support this effort. There is no
other\ supplier that supplies this type of service from
a local basis. Site will recognize a significant cost sav-
ings in overtime as a result of this effort.
Plans for the contracting went ahead in the spring of 2018.
Lukhard was familiar with the contractor, FDM, and approached
them and one other company about whether they could provide
the 24-hour coverage that DuPont would want. FDM was re-
sponsive and ended up being hired. As set forth in a June 18
email between DuPont managers, the plan was that under the
FDM arrangement that there would be four FDM firefighters on
site at any given time, “always with site apparatus, whether at
the Fire House or out on the site doing practice and training, so
they can get quickly to a scene for a size up and call for additional
resources if needed.” With FDM, DuPont would continue to
contact “county Fire and EMS for additional support for the few
times/year that we need to provide an offensive approach into an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
IDLH environment—just as we have set up today.”
The documentary evidence suggests that the contract with
FDM was finalized in early June, with a 3-year contract signed
for a total of $4 million. The only change in operation from ear-
lier drafts was that initially the shift commanders would be FDM
personnel, meaning that all four emergency services personnel
on the shift would be FDM employees. There would be three of
these four-person shifts, each composed of two fire fighters, one
lieutenant, and one shift commander. However, DuPont made
clear internally that “Within the first year we expect to transition
the Shift Commander’s position to a DuPont Exempt position.”
The contract with FDM was written to permit DuPont to make
that change at its sole election.9
According to the job descriptions written by Lukhard and on
which basis the FDM employees were hired, the shift command-
ers (be they FDM or DuPont employees) were to take “first line
direction from the Chief of Emergency Services,” i.e., from Lu-
khard. They were also to “[c]onduct investigations, report find-
ings, and make recommendations to the Chief for disciplinary
actions.” The firefighters and lieutenants were to perform pro-
jects and duties “assigned by the Shift Commander and/or
Chief.” Thus, the contractors were under operational control of
DuPont’s Emergency Services Chief, i.e., Fire Chief Lukhard.
Lukhard wrote the job descriptions for the FDM positions.
FDM did the hiring but Lukhard reviewed applicants’ “bios to
make sure they met the expectation of the job descriptions.”
These employees were hired—or, at least, were identified and
accepted employment—in the spring of 2018, perhaps in May or
June.
E. Announcement to unions of plan to subcontract the ERT
1. Preparation for meeting with unions
As mid-June approached, DuPont made plans to tell its em-
ployees and unions that it was going to subcontract the emer-
gency services.
On June 14, 2018, Yanoschak sent Meenach, Jacobs, Holmes,
and Sparks an email with a draft “Q&A” about the upcoming
ERT contracting out. She indicated that this was to be finalized
into a document that could be used in discussions with the unions
in an upcoming meeting.
Among the benefits of the contracting out of emergency ser-
vices touted on the Q&A draft were faster response times, in-
creased skill and capability, improved overall service, and
Reduced cost of services—Significant reduction in overtime,
training, and equipment and apparatus cost.
The Q&A indicated that there were no other fire protection
changes “being considered at this time . . . in addition to the
Emergency Services changes.”
9 The final contract with FDM stated:
At any point during the period of agreement, DuPont may elect to tran-
sition the Shift Commander position from a contract position to a
DuPont exempt position with 60 days' notice to FDM, thus FDM will
reduce the required workforce and billing accordingly.
10 As noted, at the commencement of the hearing DuPont admitted
the supervisory and agency status of Meenach and Holmes under the Act.
2. June 18 meeting with unions
Andre Holmes, an HR consultant for DuPont, and at time the
lead bargainer for the Spruance plant, scheduled a meeting for
June 18, with the president of the ARWI, James Palmore, and the
business manager of the Spruance plant IBEW, Craig Irvin. At-
tending the meeting with Holmes was Meenach and Valerie Ja-
cobs, a consultant who assisted DuPont with collective-bargain-
ing negotiations.10
At the meeting, Holmes informed Palmore and Irvin that
DuPont “had made a decision to outsource our emergency ser-
vices.” There was little discussion after this. Palmore asked if
DuPont was “going to bargain it,” and said that he wanted
DuPont to meet with the ARWI executive committee. Holmes
promptly scheduled a meeting for the next day, June 19, with the
executive committee, describing the subject of the meeting in the
invitation email as an “Emergency Response Discussion.”
3. Preparation for June 19 meeting with unions
That evening, June 18, at 8:30 PM, Yanoschak sent an email
to Jacobs, copying Meenach and Holmes, providing answers for
questions about the contracting out for use by management in the
next day’s meeting with the Union executive committee. Ya-
noschak’s email included an answer to Jacobs’ question about
the “financials”:
Financials- $1.7MM overtime costs (staffing and confined
space support); Training Costs $450M. Cost of the contract
services $ 1.1MM ($1MM Savings annually).
It also included an answer to the question of whether, if staff-
ing overtime on the ERT were eliminated through an increase in
employees available for ERT per shift, would the current in-
house model be a good “financial option.” The answer provided
was that if the situation could return to as in “years past when
they used to have 25‒26 people/shift . . . we could possibly elim-
inate staffing overtime.” However, according to Yanoschak this
would mean increased training costs of about $250,000, would
lead to too many people leaving their job assignments to respond
to a call, and “[f]inally, our past 2 years of experience trying to
recruit folks, has been less than fruitful or successful.”
The email also provided information about the costs associ-
ated with “support[ing] individual confined space rescue[s]”—
estimated to be $2000 per entry, with the anticipation that the
“full time contract emergency staff” would support confined
space entry needs as part of their staffing costs. In addition, the
email answered questions about how other local plants and other
DuPont plants handled emergency services. The practice at
other DuPont facilities was mixed. The local companies with
which Lukhard was familiar used a model similar to the Spru-
ance plant’s current model.
The email also made clear that with FDM as the contractor
there would be four FDM firefighters on site at any given time,
However, it denied allegations of Jacobs’ similar status. I find that based
on the record evidence—her attendance at labor relations meetings on
behalf of DuPont, the hiring of her to assist with collective-bargaining,
and her inclusion and participation in confidential correspondence
deemed only for management, and no contrary evidence—that Jacobs is
an agent of the Respondent under the Act.
DUPONT SPECIALTY PRODUCTS USA, LLC 9
“always with site apparatus, whether at the Fire House or out on
the site doing practice and training, so they can get quickly to a
scene for a size up and call for additional resources if needed.”
With FDM, DuPont would continue to contact “county Fire and
EMS for additional support for the few times/year that we need
to provide an offensive approach into an IDLH environment—
just as we have set up today.”
4. June 19 meeting with unions
The meeting with the unions took place at 11 AM. Present for
the ARWI were Donald Irvin, Mickey Galderise, James and
Keith Palmore, David Roney, Colby Creech, and Eric Irvin, and
Kevin Chaplin. Craig Irvin, the business agent from the IBEW
was also present. For management, present were Holmes,
Meenach, Jacobs, and Yanoschak.
Before the meeting, at 9:01 AM, DuPont distributed by email
“to all Spruance Employees,” an Employee Information Bulle-
tin, stating that:
The Spruance site has notified the ARWI P&M and the IBEW
unions’ leadership that we intend to transition to contracted out
emergency services beginning September 1, 2018. We will be
talking to the unions to explore how to manage through the
transition.
Holmes led the meeting. After beginning with a “safety con-
tact,” he turned to the point of the meeting: to announce that
DuPont had made the decision to contract out the ERT. Holmes
stated that “We said that the decision was management’s, but we
would bargain the effects of outsourcing the emergency ser-
vices.” Holmes told the Union “we do not want to be in the fire
business. We want to make products for the plant.” Holmes
made clear to the Union that “I am not here to bargain” about the
decision to contract out the ERT. However, he indicated that
DuPont would be willing to meet to bargain the effects of the
contracting-out decision and that DuPont wanted a smooth tran-
sition to the contracted emergency services on September 1,
2018. Holmes told the Union that “[w]e understood that there
would be a loss of overtime for our employees and that it would
affect our employees. So we were willing to have those discus-
sions with the Union.” According to Irvin, Holmes said that the
ERT was “costly, and we can reduce the cost.” Irvin asked him,
“are you willing to bargain that?” Holmes replied, “I am not here
to bargain. I am here to tell you what we are going to do.”
At the hearing there was a pointed credibility dispute about
the rationale provided at this meeting by Holmes and the man-
agement team for the subcontracting. Holmes testified that he
told the Union “that we are basing this on skills and capabilities.”
DuPont wanted “better quality firemen,” “professionals.” In his
testimony, Holmes adamantly denied that he or the other DuPont
negotiators mentioned costs or cost savings as a rationale for the
subcontracting decision.
Irvin disputed this. He testified that Holmes and the manage-
ment team relied on cost savings as the rationale for the ERT
subcontracting—indeed, it was the only motivation for it that he
recalled them stating. Irvin’s notes from the meeting reference
“Item #1 ERT elimination of all – outsource/2.1 million/reduce
plt cost – what is the cost?/refusing to bargain.” Irvin testified
that $2.1 million was the amount that DuPont management said
in this meeting that the ERT had cost in the previous year. Irvin
testified that he questioned Holmes at the meeting as to how he
came up with the figure of $2.1 million, but that he did not get
answers other than “its costly, and we can reduce the cost.”
Both Holmes and Irvin agree that Irvin asked about the costing
associated with the ERT and its outsourcing, and whether
DuPont would be saving money by replacing the ERT with con-
tractors. Irvin testified that management responded by saying
that “we will be able to save a substantial amount of money for
the plant site.” This prompted Irvin to ask Holmes “what the
price difference was between the two.” Holmes told Irvin that
“if I was making an information request, to put it in writing.”
Irvin retorted that an oral request “should suffice in a bargaining
situation,” to which Holmes replied this “wasn’t a bargaining
session.”
However, at the hearing, Holmes repeatedly and emphatically
denied saying anything at the June 19 meeting about cost sav-
ings. When Irvin said that “if the Company really wanted to save
money, you wouldn’t staff any of it . . . . you could just . . . do
away with the fire services and use Chesterfield Fire Depart-
ment,” Holmes testified that he considered Irvin to be being “a
little smart aleck,” and that therefore there was no response made
to this comment. However, Meenach testified that there was a
response, that “[w]e said that’s not the case. It’s not about the
cost. We could do that, but that’s not the plan. We need to have
safe, professional emergency responders on the plant site.”
Holmes maintained that in response to Irvin’s questions about
the cost savings associated with the outsourcing, either Meenach
or Yanoschak “[a]t that time, we told him we didn’t know. We
hadn’t crunched numbers to see what the savings were around.
The decision was basically to improve the site’s capability to re-
spond to emergencies.” Holmes testified not only had he not
stated that cost savings was behind the contracting out decision,
but that he told Irvin and the Union in the meeting that he “did
not know if there was any cost savings.” Holmes testified that at
that time of the June 19 meeting he had no knowledge of whether
or not there was cost savings associated with the contracting out.
Meenach also testified that he did not provide any cost figures to
the union in the meeting because he did not know that infor-
mation at the time. In fact, Meenach, in his testimony, went even
further. Asked at the hearing what Irvin said in the June 19 meet-
ing about the contracting out saving the Company money,
Meenach responded, somewhat nonresponsively: “So we made
it clear that it wasn’t about cost. It was about making sure we
had the right staffing levels and the right safety at the plant.”
The difficulty with Holmes and Meenach’s insistence that
they did not speak of costs or of savings, because they did not
know anything about the subject—as if the thought of cost sav-
ings had never occurred to them—is that the internal DuPont
documents, referenced above, pointedly contradict their claim.
These documents demonstrate that costs savings associated with
the contracting out—specifically cost savings from reduced
overtime and training costs—were something that all manage-
ment attendees at the June 19 meeting (Holmes, Meenach, Ja-
cobs, and Yanoschak) were cognizant of and had discussed in
emails. Indeed, as recently as June 14, this group had been on
emails where the projected cost savings of the ERT contracting
out was specifically discussed as a talking point for the upcom-
ing discussions with the Union. Holmes even admitted on cross-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
examination to reviewing documents containing cost estimates
before attending the June 19 meeting. No explanation for this
glaring contradiction has been offered.
Given this, it is easy to conclude (and would be hard not to
conclude) that Holmes and Meenach’s testimony that as of the
June 19 meeting they had no knowledge of the costs associated
with the subcontracting or the ERT was flatly false. This stren-
uously offered but false claim was offered by Holmes and
Meenach as corroboration, indeed, as supporting proof, that they
did not and could not have mentioned cost savings as a rationale
for the subcontracting in the June 19 meeting. But it is not be-
lievable because the evidence shows that Holmes and Meenach
were well aware of the specific cost savings from overtime and
training anticipated by DuPont as a result of the subcontracting.
For this reason, I am inclined to believe Irvin’s testimony that
cost savings was offered as a rationale for the subcontracting,
and to disbelieve Holmes and Meenach’s emphatic testimony
that it was not. Moreover, the fact that the talking points pre-
pared for this meeting by DuPont included reference to cost sav-
ings as one advantage of the contracting out, and further, sepa-
rately referenced overtime and training costs concerns, further
leads me to lean toward believing Irvin, and disbelieving
Meenach and Holmes on this point. Costs were an issue for
DuPont in its preparation for this meeting, and DuPont evinced
an intent to be prepared to discuss that issue with the unions.
Given this, it is plausible that it was mentioned, as testified to by
Irvin, and I credit his account.
F. The ARWI files an unfair labor practice charge; a com-
plaint is made through the DuPont hotline
Two days after the meeting, on June 21, 2018, the Union filed
an unfair labor practice charge over DuPont’s refusal to bargain
over the decision to contract out the ERT.
DuPont maintains a hotline which employees can call to reg-
ister complaints. In response to a complaint that a new manager
was “offering jobs to his old partners that he used to work with
in Chesterfield,” Holmes responded on July 11, in a message that
appears to assume that the new manager in question is Lukhard.
Holmes’ message acknowledges that the subcontracting “will
end many hours of overtime” for employees “resulting in a loss
of additional income”:
The Spruance Site leadership has been looking at ways to im-
prove productivity, yields, people capability, and various other
ways to become more cost-effective. Recently, the site man-
agement informed the Ampthill Rayon Workers, Inc. (ARWI)
and International Brother of Electrical Workers (IBEW) that
the decision has been made to contract out the site Emergency
Response Services. This decision was approved by Rose Lee,
VP of Safety and Construction, and LG Tackett, Global Oper-
ations Manager of Safety and Construction. The site under-
stands that this decision is a very emotional issue for those em-
ployees who volunteer to support the Spruance Emergency Re-
sponse Services, as it will end many hours of overtime resulting
in a loss of additional income. The third-party contract is with
FDM Safety Services, a professional firefighting organization
that has provided services for the DuPont Spruance site in the
past, and prior to Emergency Response Services Chief Robert
Lukhard's employment with DuPont.
G. July 20 meeting; July 25 follow-up letter from Holmes
Irvin and the rest of the executive committee were invited to
another meeting about the ERT with management on July 20.
Holmes sent an email listing the subject of the meeting as “Emer-
gency Response Effects Negotiations.” Holmes, Jacobs, and Ida
Harris attended for management. (Harris was identified in the
record as a DuPont HR Consultant as of April 13, 2017. See,
GC Exh. 6 at 3.) Holmes testified that one purpose of the meet-
ing was to supply the Union with the cost information that had
been requested by the Union at the June 19 meeting. When Irvin
arrived at the meeting, he noticed that not only was the ARWI’s
executive committee there, but also the IBEW’s bargaining com-
mittee.
The meeting began with a safety contact and then Holmes an-
nounced that he had called the meeting to start the effects bar-
gaining over the subcontracting. Early in the meeting, Meechan
provided the Union with information about the overtime and
training costs for 2017 for the ERT program. Holmes testified
that it “equaled up to about $2 million bucks.” Meechan testified
that the overtime cost $1.5 million, the training costs were
$600,000, for a total of $2.1 million. Meechan testified that no
information was provided about the cost of the new contracted-
out emergency response program.
Irvin asked Holmes if he was bargaining. Holmes said no.
Ms. Jacobs said, “we are here to bargain the effects of our deci-
sion.” Irvin said that the Union was there to bargain over the
ERT. According to Holmes, Irvin said something to the effect
that “at this point . . . I’m not bargaining anything out of a labor
charge.” Jacobs reiterated that “we will only bargain the ef-
fects.” The Union took a caucus and when they returned Irvin
and his team made clear they would not do the effects bargain-
ing, they had a “labor charge” and walked out. At the hearing,
Irvin testified that the principal reason for walking out was the
Union’s view that DuPont needed to engage in decisional bar-
gaining, and it had made clear that it would not. As they were
walking out, Holmes asked the IBEW business agent what its
position was. The IBEW representative said, “same as the
ARWI.” That was the end of the meeting.
By letter dated July 25, Holmes wrote the ARWI Executive
Committee, stating:
As you know, we have offered to negotiate with you about this
matter. On July 20, 2018, you refused to negotiate because you
had filed an unfair labor practice charge. In the absence of your
input we are forced to proceed without your input. Naturally,
we are happy to meet and negotiate this issue at any time.
Holmes’ letter went on to provide a July and August schedule
for the training of the FDM contractors on and off site, and using
the ERT fire trucks, hazmat, and other equipment. Finally, the
letter confirmed that a full transition to the ERT contractor was
scheduled for September 1, 2018. Evidence suggested that
DuPont paid approximately $60‒75,000 during July and August
2018, when it had the FDM employees in place and training but
before it ended the DuPont ERT program on September 1.
By email dated August 10, 2018, Yanoschak sent an email to
Lukhard, and other DuPont officials—that she told them to keep
confidential—setting forth the “ongoing annual savings and not
just 1-time” savings associated with the subcontracting. Based
DUPONT SPECIALTY PRODUCTS USA, LLC 11
on 2017, Yanoschak’s chart estimated annual overtime savings
of $732,936 by using the contractor.
Notably, by August 20, a DuPont manager was openly ex-
pressing concern to other managers as to whether the contracting
out should be justified in communications to employees as being
based on cost advantages, fearing that such an admission would
“create issues” with the unfair labor practice charge pending
against DuPont. In an August 20, email exchange devoted to re-
viewing drafts of communications to go to the plant about the
changeover to FDM, Labor Consultant Sparks stated that
I am still on the fence on including ‘reduced cost of service.’
I am thinking that once we have the final version, I would like to
run this by our legal team as there is a current ULP on this issue
and we want to make sure we are not creating issues.
In the email exchange, Yanoschak endorsed Sparks’ “updates
to my wording.”
H. September 1 implementation of subcontracting
The subcontracting was implemented as scheduled on Sep-
tember 1. There is no evidence (or claim) that the day-to-day
work of the facility—the production, the maintenance work, the
types of products produced—changed in conjunction with the
contracting out of ERT.
As far as emergency services, they have operated as planned,
with the contracted employees working 24-hour shifts. With the
exception of a building to house the contracted employees during
their 24-hour shifts, there is no new facility or building from
which the FDM employees service the Spruance plant. They are
onsite and respond as needed to calls relating to emergency ser-
vices. Instead of having six personnel for every shift as there
were under the employee-staffed model, there are now four dur-
ing any shift, and the four are now cross-trained as EMTs and
firefighters. The FDM contractors continue to rely on Chester-
field County for assistance in the “few times/year” when they
need to offensively enter an ILDH or handle a situation beyond
the FDM capability.
Lukhard testified that with the FDM contractors performing
the emergency services it is “totally different because they are
dedicated emergency services members,” whose entire work is
about preparing for, training, and being involved in emergency
services. Lukhard cited that response time had dropped, with all
ERT employees coming from a central location, but on cross ex-
amination he admitted that the advantage of all ERT members
coming from a central location would vary depending on the part
of the plant to which they were responding.
Lukhard testified that there is an ongoing $10–11 million in-
vestment by DuPont to upgrade the Honeywell fire alarm and
emergency communication systems over the next 4 years. He
also testified that that “[w]e have a long-range plan to get every
building on the site to have sprinkler protection,” a cost he esti-
mated to be a $10 million investment over the next 5‒7 years.
Lukhard also testified that DuPont was investing directly in
emergency services by investing in new extrication equipment,
upgraded hazardous-chemical monitoring equipment, as well as
11 I note that Lukhard’s figure of $800,000 for the accommodations
is undocumented and far in excess of the March 15 and April 24 power
point reports which anticipated a one-time cost of $175,000‒$200,000 to
spending approximately $800,000 on the building to provide on-
site living quarters for the contracted emergency services em-
ployees.11
I note that none of these expenditures was documented in any
fashion and, with the exception of the accommodations for the
new contractors, none of this was shown or even claimed to be
in any way dependent on, tied to, or linked to the contracting out.
Analysis
The complaint alleges (GC Exh. 1(c) at ¶¶ 6 &10) that since
about June 18, 2018, and thereafter, the Respondent has violated
Section 8(a)(5) and (1) of the Act by failing and refusing to bar-
gain over the emergency services work. Further, the complaint
alleges (GC Exh. 1(c) at ¶¶ 7&10) that about September 1, 2018,
the Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally subcontracting the emergency services work without
providing the Union an opportunity to bargain.
A. The failure and refusal to bargain over emergency services
1. The duty to bargain over the emergency services subcon-
tracting decision
Section 8(a)(5) of the Act provides that it is an unfair labor
practice for an employer “to refuse to bargain collectively with
the representatives of his employees.” Under Section 8(d) of the
Act mandatory subjects of bargaining include “wages, hours, and
other terms and conditions of employment.” As the Supreme
Court explained in Fibreboard Paper Products Corp. v. NLRB,
379 U.S. 203, 210–211 (1964), the contracting out of unit work
is well within the literal meaning of the phrase ‘terms and con-
ditions of employment’ . . . . The inclusion of “contracting out”
within the statutory scope of collective bargaining also seems
well designed to effectuate the purposes of the National Labor
Relations Act. One of the primary purposes of the Act is to
promote the peaceful settlement of industrial disputes by sub-
jecting labor-management controversies to the mediatory influ-
ence of negotiation. The Act was framed with an awareness
that refusals to confer and negotiate had been one of the most
prolific causes of industrial strife. NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 42–43 [(1937)]. To hold, as the Board
has done, that contracting out is a mandatory subject of collec-
tive bargaining would promote the fundamental purpose of the
Act by bringing a problem of vital concern to labor and man-
agement within the framework established by Congress as
most conducive to industrial peace.
Thus, in Fibreboard, the Supreme Court held that an em-
ployer’s “replacement of employees in the existing bargaining
unit with those of an independent contractor to do the same work
under similar conditions of employment” is a mandatory subject
of bargaining. Id. at 215.
However, the Court in Fibreboard recognized that not every
form of arrangement called contracting out or subcontracting
necessarily falls within the ambit of the duty to bargain. 379
U.S. at 215. In his influential concurrence in Fibreboard, Justice
Stewart distinguished the subcontracting at issue in Fibreboard,
provide living quarters for FDM staff. (GC Exh. 12 at 3; GC Exh. 13 at
2.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
where employees are replaced with those of an independent con-
tractor to do the same work, from other types of management
decisions “concerning the commitment of investment capital and
the basic scope of the enterprise” that “lie at the core of entrepre-
neurial control.” 379 U.S. at 223. This latter type of decision,
for which bargaining is not required, was discussed by the Su-
preme Court in First National Maintenance, 452 U.S. 666
(1981), where the Court concluded that a management decision
involving “a change in the scope and direction of the enterprise,
is akin to the decision whether to be in business at all,” and the
type of decision over which an employer has no duty to bargain.
Id. at 677, 686–688.
Consistent with Fibreboard and First National Maintenance,
the Board has long held that a decision to subcontract the work
of employees that is unaccompanied by any substantial commit-
ment of capital or change in the scope of the business is not a
decision at “the core of entrepreneurial control” and, therefore,
is a mandatory subject of bargaining. Torrington Industries, 307
NLRB 809 (1992); Spurlino Materials, Inc., 353 NLRB 1198,
1218 (2009) (“Subcontracting of bargaining unit work that does
not constitute a change in the scope, nature, or direction of the
enterprise, but only substitution of one group of workers for an-
other to perform the same work is clearly a mandatory subject of
bargaining”), reaffirmed 355 NLRB 409 (2010); Sociedad Es-
panola de Auxilio Mutuo y Beneficia de P.R., 342 NLRB 458,
458 (2004), enfd. 414 F.3d 158 (1st Cir. 2005), enfd. 414 F.3d
158 (1st Cir. 2005).
In this case, the Spruance plant emergency services work had
for many decades been performed by bargaining unit (and some
nonbargaining unit) DuPont employees. They were paid for the
work and, indeed, it was a major source of overtime for those
employees who sought, trained and qualified for ERT positions.
As DuPont recognized in its internal discussion and documents,
this overtime was a significant cost to DuPont—over $1.6 mil-
lion in 2017—and along with savings in training costs, the sub-
contracting was variously anticipated by DuPont to save it
$732,000 to $1 million annually. (See, GC Exh 13 at 3; GC Exh.
12 at 3; GC Exh. 17 at 2 (item 8); GC Exh. 21 at 3.) As a result
of DuPont’s decision to subcontract, this work and the training
for it would no longer available to unit employees. However, the
work continued to be done, onsite at the Respondent’s facility,
utilizing the same equipment and resources, and even remaining
under the control and direction of the DuPont. By the contract
with FDM, Chief Lukhard directly supervised the contract shift
commanders and could assign work to the remaining FDM em-
ployees. Lukhard even wrote the job descriptions for the con-
tract employees and had input into their hiring. Moreover,
DuPont’s stated plan was to subsequently replace the contracted-
FDM shift commanders with “exempt” DuPont employees. Fi-
nally, it is notable that even after the subcontracting, DuPont—
now using a contractor instead of employees—continued to en-
sure and take responsibility for emergency services throughout
the entire Spruance plant (everywhere “within the fence line”)
including the separately operated Zytel and Mylar plants, and
even at the utilities operation operated onsite by a company
named Veolia since February 2018. Indeed, in January 2019,
DuPont entered into an agreement with Veolia to continue to
provide emergency services to utilities operations for the next 18
years. This is hardly a case, as Holmes tried to convince the Un-
ion, of DuPont “not want[ing] to be in the fire business.”
As of September 1, 2018, the contractor’s employees per-
formed the same emergency services work that the DuPont em-
ployees used to perform. The work was not eliminated or moved
from the Spruance plant. Although it could have—no law or
regulation requires that DuPont maintain an onsite emergency
services—DuPont did not cease providing for emergency ser-
vices at the Spruance plant. It did not shut down a segment of
the Spruance plant operations. Rather it continued to provide for
emergency services with the use of contract work force under its
control. The work and responsibilities were transferred to a con-
tractor that the Respondent hired to do the emergency services
work. I conclude that this closely resembles “Fibreboard sub-
contracting” and the decision is subject to the duty to bargain.
There are differences, to be sure, between the working condi-
tions of the new contractor employees and the unit employees—
there are fewer new contractors per shift, they work longer shifts,
and their work is exclusively emergency-services related work—
they do not perform the emergency services work as an addition
to a production or maintenance job. But these changes in work—
all changes, of course, that by themselves fall within the core of
the duty to bargain, and all changes decided upon, adopted, and
maintained by DuPont and its Chief Lukhard—do not in any way
change the fundamental work or duties that the contractor em-
ployees are performing: they are assigned and are performing the
emergency services work, at the same location, in the same man-
ner, and under the same plant conditions. Fibreboard refers to
similar conditions, not identical ones, and DuPont has not fun-
damentally eliminated or changed anything.
In its brief, DuPont stresses that no unit employees lost their
jobs—only overtime opportunities—on account of the contract-
ing out of the ERT. However, the overtime losses are significant.
As Holmes admitted in his July 11 response to the “hotline” in-
quiry, DuPont
understands that this decision is a very emotional issue for
those employees who volunteer to support the Spruance Emer-
gency Response Services, as it will end many hours of overtime
resulting in a loss of additional income.
In any event, even in the absence of immediate impact on unit
employees’ hours of work the Board still requires bargaining
over otherwise bargainable subcontracted work. Mi Pueblo
Foods, 360 NLRB 1097, 1097–1098 (2014) (“bargaining is not
excused simply because no driver was laid off or experienced a
significant negative impact on his employment . . . . [T]he Board
has held that when bargaining unit work is assigned to outside
contractors rather than bargaining unit employees, the bargain-
ing unit is adversely affected”); Bob’s Tire Co., 368 NLRB No.
33, slip op. at 6 (2019) (loss of opportunities for increased over-
time adversely affects unit); Overnite Transportation, 330
NLRB 1275, 1276 (2000); Acme Die Casting, 315 NLRB 202
fn. 1 (1994).
Contrary to the claims of the Respondent, there is simply noth-
ing about the decision that constitutes “a change in the scope and
direction of the enterprise” (First National Maintenance Corp.
v. NLRB, 452 U.S. 666, 677 (1981)) or “lie[s] at the core of en-
trepreneurial control.” Fibreboard, 379 U.S. at 223 (Stewart, J.
DUPONT SPECIALTY PRODUCTS USA, LLC 13
concurring).
First of all, as referenced above, DuPont did not eliminate the
function of emergency services from that basket of services, pro-
duction, and support, that is performed as part of the operation at
the plant. The work was not relocated to another part of the
country or a different plant. Another company has not come in
and paid DuPont to use DuPont’s emergency equipment, its land,
and utilities. It is not even the case that the emergency services
work is now performed by a new entity located elsewhere that
only comes to the Spruance plant episodically to handle emer-
gencies as they arise. Rather, DuPont now provides the emer-
gency services with a contracted 12-person fulltime crew—
which remains under DuPont’ Fire Chief Lukhard’s ultimate
control—rather than with a group of part-time DuPont employ-
ees. This is Fibreboard subcontracting.
Equally to the point, the Spruance plant’s products, produc-
tion processes, and business are unaffected by this change in the
employment arrangements for supplying emergency services.
Emergency services is necessary and important work for a syn-
thetics production plant, but it is tertiary to the plant’s nature and
purpose. The change in the employment arrangement for the in-
dividuals performing emergency services did not impinge on the
nature, purpose, or scope of the enterprise. Mi Pueblo Foods,
360 NLRB at 1098 (“The Respondent remained in the business
of warehousing and delivering products, and the Respondent's
decision to change the manner in which products of one of its
suppliers reached most of its stores did not involve matters at the
core of its enterprise”); Power, Inc., 311 NLRB 599, 599 (1993)
(finding duty to bargain over subcontracting of operation and
maintenance of rock trucks and graders and drilling operations,
in part, because “the Respondent continued to mine, process, and
sell coal; it did not substantially change its production process”),
enfd. 40 F.3d. 409 (D.C. Cir. 1994).12
Indeed, in this regard, the Board has specifically rejected em-
ployer efforts to narrowly characterize the business as the sub-
contracted work in an opportunistic effort to claim that the sub-
contracting at issue changed the scope or direction of the busi-
ness.
For example, in Bob’s Big Boy, 264 NLRB 1369 (1982), an
administrative law judge found that an employer that prepared
foodstuffs for individual restaurants had changed the nature and
direction of its business—and therefore did not have to bargain
about the decision—by contracting out the preparation of
shrimp. The Board reversed, in reasoning worth setting out here:
In our view, a proper analysis of this case begins with an accu-
rate characterization of Respondent's business. While it is lit-
erally correct to say that Respondent was in the shrimp pro-
cessing business, we find that to be too narrow a description of
Respondent's business. More accurately, Respondent is in the
business of providing prepared foodstuffs to its individual res-
taurants. Thus, shrimp preparation existed as a component part
of Respondent's business along with the preparation of meats,
12 See also, Holmes & Narver, 309 NLRB 146 (1992) (finding that an
employer's internal reorganization of jobs for its mechanics in its motor
pool to give them additional duties required bargaining, because the de-
cision did not entail abandoning a line of business, ceasing business with
a particular customer, or significantly altering the scope of the business;
salad dressing, produce, and bakery goods and did not consti-
tute a separate and distinct business enterprise. With this more
accurate definition of Respondent's business before us, we can
engage in more meaningful analysis of whether Respondent's
action is suitable to collective bargaining or whether it is a de-
cision that goes to the very core of entrepreneurial control.
Our dissenting colleagues' characterization of Respondent's
business, like that of the Administrative Law Judge, artificially
fragments Respondent's enterprise and ignores the fundamen-
tal purpose of its operation. Respondent provides prepared
foods to its retail restaurants. It did so before contracting with
Fishking to prepare breaded shrimp, and it does so after that
agreement. The issue presented is thus readily distinguishable
from First National Maintenance and from other cases involv-
ing the termination of an independent portion of a respondent's
operations. In First National respondent totally ceased servic-
ing the nursing home where the represented employees in ques-
tion had been employed. Here Respondent not only continues
to service its restaurants, but it continues to supply them with
prepared shrimp.
Bob’s Big Boy, 264 NLRB at 1370–1371 fn. 12 (footnote citation
omitted).
In our case, DuPont’s contracting out does not even rise to the
level of the shrimp processing in Bob’s Big Boy, which, at least,
altered a component of the foodstuffs product prepared and pro-
vided to the employer’s customers. It does not rise to the level
of the change in distribution of products in Mi Pueblo Foods,
which affected the delivery of products. It does not rise even to
the level of the job consolidations and reassignments in Holmes
& Narver, that changed the work demands on motor pool me-
chanics. DuPont’s subcontracting of the duties of emergency
services leaves the production, scope, and function of the busi-
ness undisturbed.
That the Spruance plant’s emergency services work is not a
primary production function, and that the emergency services
continues to be performed onsite by a contractor, leaves the Re-
spondent with only inapposite cases to cite. For instance, the
Respondent cites Arrow Automotive Industries v. NLRB, 853
F.2d 223 (4th Cir. 1988). However, that case involved an
auto/truck parts remanufacturer and distributer that closed its
Hudson, Massachusetts plant. The work went to its South Caro-
lina facility. The court found that such a plant closure involved
a change in the scope and direction of the enterprise, and the
plant closure decision was not required to be bargained. But
DuPont has not closed the Spruance plant—or any part of it. Its
emergency services work has been re-designated to a contractor
working onsite, the work has not been relocated.
DuPont also cites Gar Wood-Detroit Truck Equipment, 274
NLRB 113 (1985), but that case involved an employer’s deci-
sion—necessitated by an existential need to “reduce its overhead
costs across-the-board so as to be able to remain in business”—
rather, the employer performed the same work with fewer employees,
and its decision was “almost exclusively ‘an aspect of the relationship’
between employer and employee” amenable to bargaining).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
to exit the business of mounting and servicing equipment on
trucks leaving only its business of selling truck parts. The em-
ployer in Gar Wood-Detroit subcontracted the mounting and ser-
vicing work, leased its facilities and equipment to the new sub-
contractors who began paying a portion of the employer’s rent
and utilities. The employer retained no right of control over the
subcontractor’s employees. The Board relied on evidence show-
ing that this decision was made as part of a decision “to get out
of the garage business” and operate as a “parts distribution” busi-
ness,” which the Board found to be a fundamental shift in the
nature and direction of the employer’s business. In sharp con-
trast, DuPont has not altered its Spruance plant business at all—
its operations and production remain unchanged. Indeed, it has
not even gotten out of the emergency services—as the FDM em-
ployees continue to report through their chain of command to
Lukhard, DuPont has plans to replace the FDM shift command-
ers with DuPont exempt employees, and FDM does not rent or
compensate DuPont for use of DuPont’s equipment or land.
DuPont has not gone out of the emergency services business.
Rather, it has hired a contractor to provide employees to perform
the emergency services previously performed by the DuPont em-
ployees.
DuPont also contends that its motives for the subcontracting
exempt the decision from collective-bargaining obligations un-
der the Act. However, labor costs, specifically overtime and
training labor costs, were manifestly a factor in the decision to
contract out. As noted, above, the actual decision-making pro-
cess of upper management about the subcontracting is opaque.
What we have demonstrates that the anticipated savings in over-
time and training costs were significant factors, repeatedly em-
phasized in the explanations for the contracting out.13
At the hearing, the substantial evidence of labor cost motiva-
tion in the decision to subcontract was met with the insistence of
the Respondent’s witnesses that cost savings had nothing to do
with the matter.
Unfortunately, it appears, as the General Counsel points out,
that once the Union filed its unfair labor practice in June 2018,
the Respondent began to omit the cost savings rationale from its
discussions of the contracting out. For instance, Lukhard’s post-
implementation October 24, 2018 power point—very unlike the
confidential March and April 2018 power points, which each de-
voted a whole slide to showing the anticipated $1 million annual
savings—omitted any reference to cost savings. Lukhard’s Oc-
tober 2018 presentation was for public—or perhaps, NLRB—
consumption. Behind the scenes, the costs savings to be netted
from the contracting of the ERT remained important to DuPont.
13 See, March 15, and April 24, power point demonstrations high-
lighting the anticipated $1 million annual savings in overtime and train-
ing costs; June 18 email from Yanoschak “$1.7MM overtime costs (staff-
ing and confined space support); Training Costs $450M. Cost of the con-
tract services $ 1.1MM ($1MM Savings annually)”; “confidential” Au-
gust 10 email with chart showing “ongoing annual savings and not just
1-time” savings associated with the contracting; April 27, Tackett ap-
proval of “cost sourcing variance request” citing as justification for sub-
contracting that the “Site will recognize a significant cost savings in
overtime as a result of this effort”; June 14 email citing “Reduced cost
of services” as benefit and more specifically identifying “Significant re-
duction in overtime, training, and equipment and apparatus cost.”
Yanoschak’s August 10, 2018 email was devoted to the sub-
ject—projecting annual overtime and training cost savings of
over $700,000, but warning that the matter should be kept quiet:
Please find attached the spreadsheet containing the savings as-
sociated with the change to contract Emergency Services.
Please maintain the confidentiality of this document and do not
forward or provide to anyone other than the person that needs
to calculate IRR. These are ongoing annual savings and not
just 1-time.14
Why the secrecy, at this late date less than 3 weeks before im-
plementation? A clue is found in Sparks’ August 20 email to
other top managers, part of a group email crafting the wording
of a bulletin about the subcontracting to be distributed to the
work force. In the email Sparks expressed concern, endorsed by
Yanoschak, that the bulletin should not mention “reduced costs
of service” for fear of “creating issues” for the “current ULP on
this issue.”15
At the hearing, the Respondent’s witnesses only added to this
odor of disingenuity. Holmes testified that when he announced
the subcontracting to the Union, he had no knowledge of any cost
savings associated with the subcontracting, and, therefore could
not have addressed the issue of costs. But this was shown to be,
and is found to be, unbelievable. In the days and also months
before the meeting with the unions, Holmes was privy to DuPont
documents that highlighted the anticipated overtime and training
cost savings of a million dollars annually to be gleaned from the
subcontracting. Meenach engaged in the same testimonial eva-
sion, going so far as to nonresponsively volunteer, in response to
a question about what Irvin said at the June 19 meeting, that “So
we made it clear that it wasn’t about cost. It was about making
sure we had the right staffing levels and the right safety at the
plant.” This is all very suspect in the context of a record where
DuPont appears to be purposefully trying to shape its unfair labor
practice defense by minimizing or eliminating a labor-cost ra-
tionale for the subcontracting decision.
In short, the plethora of evidence demonstrating the im-
portance of the overtime and training cost savings to the con-
tracting out decision is only heightened by DuPont’s effort to
hide it and deny it. And DuPont’s motive seems clear. DuPont
undoubtedly understands that the Supreme Court has “empha-
sized that a desire to reduce labor costs [is] considered a matter
‘peculiarly suitable for resolution with the collective bargaining
framework.’” First National Maintenance, 452 U.S. at 680,
14 IRR is a common accounting abbreviation for internal rate of re-
turn, a metric used to estimate profitability.
15 Sparks wrote:
I am still on the fence on including ‘reduced cost of service.’ I am
thinking that once we have the final version, I would like to run this by
our legal team as there is a current ULP on this issue and we want to
make sure we are not creating issues.
The version of the bulletin that made it into the record (see, GC Exh.
18 at 4), which, Yanoschak wrote, reflected “Mary Anne[‘s] . . . updates
to my wording that I like,” did not reference “reduced cost of service” or
make any reference to the cost savings that Yanoschak was predicting.
DUPONT SPECIALTY PRODUCTS USA, LLC 15
quoting Fibreboard, 379 U.S. at 204.16
In addition to the direct overtime and training cost savings that
animated the Respondent’s subcontracting decision, it is notable
that Lukhard’s lengthy testimony about his interest in the con-
tracting out—intended by the Respondent to act as a stand in for
DuPont upper management’s decision making process—also
supports the finding that the contacting out of the ERT was a
mandatory subject of bargaining.
Thus, Lukhard emphasized in his testimony that the subcon-
tracting was motivated by problems DuPont encountered in find-
ing sufficient able unit employees necessary to staff and lead the
emergency services. The Board has squarely held that this ra-
tionale for subcontracting places the subcontracting decision
within the ambit of the duty to bargain. Sociedad Espanola de
Auxilio Mutuo y Beneficia de P.R., 342 NLRB 458, 468–469
(2004) (employer claim that subcontracting “prompted by its in-
ability to recruit and hire the X-ray technicians and respiratory
therapists needed to meet its staffing requirements” demonstrates
that decision was mandatory subject of bargaining), enfd. 414
F.3d 158 (1st Cir. 2005); Furniture Rentors of America, 311
NLRB 749, 750 (1993) (subcontracting motivated by dissatis-
faction with employees’ conduct and performance is bargaina-
ble), enf. denied in relevant part, 36 F.3d 1240 (3d Cir. 1994).
Indeed, these types of concerns are themselves, indirect labor
costs covered by the duty to bargain. See generally Dubuque
Packing Co., 303 NLRB 386, 391 (1991) (labor costs include
both direct and indirect costs of labor), enfd. 1 F.3d 24 (D.C. Cir.
1993), cert. denied 511 U.S. 1138 (1994). See also Electrical
Workers Local 11, 217 NLRB 397, 400 (1975) (labor costs in-
cluded man-hours lost training employees and familiarizing
them with employer's equipment).
Lukhard also stressed the dangerous mix of chemicals and
processes at play in the plant as a basis for his desire to subcon-
tract, a motive that the Respondent characterizes as a safety and
environmental concern. However, this motive, which—as it is
completely absent from any contemporaneous or even post-im-
plementation documentation touting the benefits or rationale for
the contracting out—appears to be contrived for litigation. At
the hearing, Lukhard was led through a lengthy but rote account
of the many dangerous chemicals onsite; for each chemical he
endorsed a question posed by counsel as to whether that hazard
“inform[ed]” or “influenc[ed]” “your decision to outsource the
ERT.” See, Tr. at 367, 372, 371, 379, 392, 393, 398, 399, 407.
The Respondent urges its safety concerns as a predicate for its
claim that they render the decision to subcontract the ERT non-
bargainable in accord with Oklahoma Fixture, 314 NLRB 958
16 I note that the evident role of overtime labor costs does not make
applicable the burden-shifting test articulated in Dubuque Packing Co.,
303 NLRB 386 (1991), enfd. in relevant part, 1 F.3d 24 (D.C. Cir. 1993).
Given that the unilateral work change at issue does not involve relocated
work, the General Counsel and the Respondent’s arguments about how
the dispute would be resolved under Dubuque Packing are inapposite.
The Board has never applied Dubuque Packing to decisions, such as that
here, that manifestly are not work relocation decisions. Rather, the
Board “has made clear, however, that that particular burden-shifting test
was devised for determining the nature of relocation decisions, and we
did not purport to extend it to other types of management decisions that
affect employees.” Torrington, 307 NLRB 809, 810 (1992), citing
(1994). That case, the Board found, “present[ed] the unusual sit-
uation” where the credited testimony of the employer’s vice
president who made the subcontracting decision established that
the decision “was based on core entrepreneurial concerns outside
the scope of mandatory bargaining.” Id. at 960. More specifi-
cally, in Oklahoma Fixture, an employer that manufactured dis-
play cases for department stores—primarily for one customer,
Dillard’s—brought electrical wiring work inhouse after contract-
ing it out for 5 years. One year later, the credited testimony of
the employer’s Vice President Cavins was that he decided once
again to subcontract the electrical work because he was con-
cerned about legal liability, the risk of losing Dillard’s as a cus-
tomer and of losing virtually all of the Respondent’s revenue in
the event of electrical damage, that he did not feel competent to
oversee the wiring work, and that he wanted a subcontractor who
was insured to do the work. Id. at 958, 960. Relying on the fact
that “[t]he judge credited the testimony of Vice President Mark
Cavins that he was genuinely concerned about legal liability and
the risk of losing Dillard’s business in the event of electrical
damage caused by the Respondent’s employees,” and recogniz-
ing that that “’[l]abor costs,’ even in the broad sense of the term
employed by the Board, were not a factor in the decision,” the
Board found that the employer’s subcontracting “involved con-
siderations of corporate strategy fundamental to preservation of
the enterprise,” and therefore was outside the scope of the duty
to bargain.
DuPont’s decision to contract out the ERT here cannot be
molded into a “core entrepreneurial” endeavor that was part of a
“corporate strategy fundamental to preservation of the enter-
prise,” as was the case in Oklahoma Fixture.
For one thing, and dispositively, unlike the decision in Okla-
homa Fixture, the decision to subcontract here did involve labor
costs, as discussed above, both in terms of direct overtime cost
savings and indirect costs of staffing and training.
For another, unlike in Oklahoma Fixture, I do not credit the
claim that safety concerns “fundamental to the preservation of
the enterprise” motivated this subcontracting. In this regard, I
do not put much stock on Lukhard’s rote and led testimony on
this score. The hazards are real, but the suggestion at trial a year
later that it contributed to the decision to contract out the ERT
(vaguely described as “informing” or “influencing” the decision)
is self-serving, uncorroborated, and unverified. It lacks credibil-
ity, as safety is unmentioned in any of the documentation about
the decision created by the Respondent before or after the sub-
contracting.17 But even assuming, arguendo, safety was an hon-
est concern of Lukhard’s, there is zero evidence that he presented
Dubuque Packing, 303 NLRB 386, 388–390 (1991). See also, Somerset
Valley Rehabilitation & Nursing Center, 364 NLRB No. 43, slip op. at 4
& 14 (2016) (judge rejects application of Dubuque Packing analysis
where “there is no evidence that bargaining unit work was geograph-
ically relocated as in Dubuque Packing”; Board holds that “if defenses
the Respondent raises were cognizable here, we affirm the judge’s rea-
sons for rejecting them on the merits”); Power, Inc., 311 NLRB 599, 599
(1993) (“the Dubuque test does not apply in cases factually similar to
Fibreboard”), enfd. 40 F3d 409 (D.C. Cir. 1994).
17 Such “post-hoc” justifications are typically found to be pretextual.
See, e.g., Approved Electric Corp., 356 NLRB 238, 239 (2010) (“The
Board commonly recognizes such shifting rationales as evidence that an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
or expressed this concern to others above him or that it figured
in any way into DuPont’s decision to subcontract. There was
absolutely nothing new about the hazards and chemicals at the
Spruance plant. They had all been there as long as anyone who
testified could remember. If the safety of the employee ERT was
a concern to Lukhard, who arrived in July 2017, there is no evi-
dence that anyone else at DuPont, including the more senior
managers to whom Lukhard reported and who were involved in
the decision to subcontract the ERT, shared the view that the
ERT program compromised safety. The credibility of the claim
is not enhanced by the fact that its acceptance requires accepting
that safety concerns that had comfortably existed with an em-
ployee ERT for decades and decades, suddenly are perceived by
DuPont as an existential threat to the enterprise. There is simply
no evidence to support this fantastic claim, which is wholly un-
documented as a concern by DuPont at the time the decision was
being made.
Finally, even assuming, wrongly and without credible evi-
dence that safety was one of the concerns that prompted the sub-
contracting, this negates not at all the amply documented con-
cerns with overtime costs and staffing issues that motivated the
subcontracting. Those concerns are bargainable reasons for the
subcontracting and the (late) addition of professed safety con-
cerns does not retroactively render the decision nonbargainable.
For all of these reasons, Oklahoma Fixture is inapposite to the
situation at bar here.
DuPont’s remaining contention is that the decision to contract
out the emergency services was part of a decision to make capital
expenditures or liquidate assets. This does not follow from the
evidence. While the Respondent makes much of Lukhard’s
claims that DuPont is investing in infrastructure related to emer-
gency services over the next 5 or 10 years—wholly undocu-
mented claims, I note—none of it is linked in any way to the
decision to subcontract the emergency services. Thus, upgraded
communications systems, an upgraded fire alarm system, an up-
graded sprinkler system, all of this vaguely discussed as being
completed in 4 years, or 5 years, or more, are the type of im-
provements that could be made with or without contracting out
of the ERT. There is no evidence that any assets are being sold
to the contractor or otherwise given up. Notably, and signifi-
cantly, none of DuPont’s internal or external communications
about the subcontracting decision associate or even mention in
any way the alleged capital expenditures and infrastructure im-
provements. In this regard, apropos is the Board’s explanation
for rejecting the employer’s “capital expenditure” defense to the
duty to bargain subcontracting in Bob’s Big Boy Family Restau-
rants, 264 NLRB at 1371:
We note that, when the subcontracting arrangement became
operative, Respondent was not required to engage in any sub-
stantial capital restructuring or investment. . . . In short, no im-
mediate restructuring of capital was necessitated by the deci-
sion to subcontract and the subsequent capital transactions,
employer’s proffered reasons for discharging an employee are pre-
textual”) (citing City Stationery, Inc., 340 NLRB 523, 526 (2003)).
18 I note but dismiss the Respondent’s further contention that the sub-
contracting of the ERT work was linked or “attributable to” a significant
corporate restructuring that DuPont effectuated worldwide in the spring
while not de minimis, occurred at a leisurely pace with Re-
spondent retaining possession of the basic facility and certain
of the equipment used in shrimp processing. Accordingly, the
capital transactions undertaken pursuant to the decision to sub-
contract are not, in our view, substantial enough to remove the
decision from the scope of Respondent's mandatory bargaining
obligation.
This is even more true here, where the vague assertions of cap-
ital expenditures are not driven or linked in any demonstrated
way by the subcontracting or associated with it.18
After decades of having employees perform the emergency
services work, DuPont decided it wanted to hire a contractor to
perform the same work. It need not be said, but to avoid any risk
of misreading I will say it: nothing in this record suggests that
DuPont’s desire to contract out the ERT was borne of illegal mo-
tive; nothing in this record shows that DuPont was wrong to want
to contract out the ERT. Indeed, it may well be that the Respond-
ent’s desire to contract out the work makes eminent sense for the
operation and, perhaps, even for the employees. And it may be
that after unsuccessful but good-faith bargaining, the Respond-
ent would have been able to implement the subcontracting. But
the subcontracting decision is grist that the Act requires the Un-
ion be given the opportunity to put through the mill of the bar-
gaining process.
2. Contractual and waiver defenses
DuPont contends (R. Br. at 29–30) that it was excused from
the duty to bargain over the emergency services subcontracting
based on a “contract coverage” defense. In MV Transportation,
Inc., 368 NLRB No. 66 (2019) the Board adopted the contract
coverage standard to analyze contractual defenses to refusal to
bargain allegations. Under this standard,
the Board will examine the plain language of the collective-
bargaining agreement to determine whether action taken by an
employer was within the compass or scope of contractual lan-
guage granting the employer the right to act unilaterally. . . . In
other words, the Board will honor the parties’ agreement, and
in each case, it will be governed by the plain terms of the agree-
ment.
MV Transportation, supra at slip op. 2.
Essentially, under the contract coverage standard, “where . . .
the agreement will have authorized the employer to make the
disputed change unilaterally . . . the employer will not have vio-
lated Section 8(a)5).” MV Transportation, supra at 11.
“On the other hand,” the Board explained in MV Transporta-
tion:
if the agreement does not cover the employer’s disputed act,
and that act has materially, substantially and significantly
changed a term or condition of employment constituting a
mandatory subject of bargaining, the employer will have vio-
lated Section 8(a)(5) and (1) unless it demonstrates that the un-
ion clearly and unmistakably waived its right to bargain over
of 2019 (R. Br. at 15, ¶50; R. Exh. 50). There is zero evidence that the
contracting out of ERT in 2018, was in any manner caused by, attributa-
ble to, or related to this world-wide corporate restructuring. Whatever
changes were roiling the corporate and financial waters at DuPont world-
wide, at Spruance the operations were—by all evidence—unaffected.
DUPONT SPECIALTY PRODUCTS USA, LLC 17
the change or that its unilateral action was privileged for some
other reason. Thus, under the contract coverage test we adopt
today, the Board will first review the plain language of the par-
ties’ collective-bargaining agreement, applying ordinary prin-
ciples of contract interpretation, and then, if it is determined
that the disputed act does not come within the compass or scope
of a contract provision that grants the employer the right to act
unilaterally, the analysis is one of waiver.
MV Transportation, supra at slip op. 2 (footnotes omitted)
Given the labor agreements between the ARWI and DuPont
(both the 2015 Agreement and the 2018 Agreement), the con-
tract-coverage defense is meritless in this case. Indeed, in its
brief, DuPont avoids reference to a provision of the 2018 agree-
ment that specifically treats with limitations on its right to con-
tract out.
The provisions that DuPont cites in support of its “contract
coverage” defense are so far removed from the dispute at hand
that DuPont has trouble explaining their application. DuPont
points to—and points only to—two sections of the labor agree-
ments in support of its argument; two sections from the “Miscel-
laneous” article of the agreements (secs. 2 and 9 of article IX of
the 2015 Agreement, restated as secs. 2 and 8 of article IX of the
2018 Agreement). These provisions state:
Section 2. Recognizing the technical nature of the
COMPANY'S Operations, the UNION acknowledges the
COMPANY'S right to employ and retain individuals with tech-
nical training in such capacity as Management deems desirable.
However, any such employee (student operator, etc.) being
trained in the Plant areas shall not prevent an employee not
technically trained from gaining a promotion in such capacity
as he normally would receive under Article VIII. Such techni-
cally trained employee shall take his normal seniority position
if he is removed from his special position.
* * * *
Section 9 [Section 8 in the 2018 Agreement]. Supervision will
not perform production or maintenance work ordinarily done
by employees covered by this Agreement, except they may
perform such work in the interest of safety or in the preserva-
tion of COMPANY property or in the performance of duties
such as Instruction, training, work during emergencies or for
the purpose of investigation inspection, experimentation and
obtaining information when production or equipment difficul-
ties are encountered.
As to section 2, DuPont does not even venture a claim as to
what that has to do with a purported unilateral right to contract
out the ERT. As to sections 8 and 9, the contracting out at issue
does not involve the use of supervisors in place of unit employ-
ees, so the relevance of the provision is not apparent, and, in any
event, DuPont’s claim that its contracting out of the ERT was
undertaken in the interest of safety, and as an emergency, and
thus permitted by this section, has been rejected as a
19 Contrary to the Respondent’s suggestion on brief, there is zero ev-
idence that subcontracting of the ERT constituted an emergency—in-
deed, one puzzles over how a subcontracting decision conceived of in
March and April, announced in June, and implemented in September,
contrivance.19
These contractual provisions cited by DuPont do not even re-
motely suggest that the unilateral contracting out of the ERT was
“with in the compass or scope of contractual language granting
the employer the right to act unilaterally.” MV Transportation,
supra.
Most tellingly with regard to its “contract-coverage” defense,
DuPont ignores—it does not mention—that the 2018 Agree-
ment—which was effective September 1, the day of the contract-
ing out of the emergency services, contains an Addendum E
(“Contract of Work (COW) Procedure) that establishes a bar-
gaining process for the contracting out of work. This provision
states that:
Since all contracted work requires prior bargaining, this proce-
dure describes the process to engage appropriate site resources
to review these jobs and approve the use contracted resources.
Appendix A to Addendum E lists jobs that “have been blanket
bargained with the Unions and do not have to go through the
Contracting of Work process,” but emergency services (or any-
thing resembling it) is not listed.
One of the stated goals of the Board in adopting the “contract-
coverage” standard was “ensuring that all provisions of the par-
ties’ agreement are given effect.” MV Transportation, supra at
slip op. 9 (Board’s emphasis). It is not lost on me that DuPont’s
contention that it has a contractually-based right to unilaterally
contract the ERT fails to treat with—or even direct the Board’s
attention to—a provision of the current agreement—in effect
from the day the subcontracting was implemented—that appears
to affirmatively refute its contractual defense.
The Respondent also argues that the Union has waived the
right to bargain over contracting out of the emergency services
work. As set forth in MV Transportation,
if the contract coverage standard is not met, the Board will con-
tinue to apply its traditional waiver analysis to determine
whether some combination of contractual language, bargaining
history, and past practice establishes that the union waived its
right to bargain regarding a challenged unilateral change.
MV Transportation, supra slip op. at 12.
Thus, the Board’s traditional “clear and unmistakable” waiver
standard remains applicable where the contract coverage defense
fails. Under that standard, a waiver of statutory bargaining rights
is not lightly inferred and must be “clear and unmistakable.” See
Metropolitan Edison v. NLRB, 460 U.S. 693, 708 (1983);
Provena St. Joseph Medical Center, 350 NLRB 808 (2007). The
party asserting waiver must establish that the parties “unequivo-
cally and specifically express[ed] their mutual intention to per-
mit unilateral employer action with respect to a particular em-
ployment term, notwithstanding the statutory duty to bargain that
would otherwise apply.” Provena St. Joseph Medical Center,
350 NLRB at 811; Johnson-Bateman Co., 295 NLRB 180, 189
(1989) (In order to find a waiver based on contractual language,
that language must be “sufficiently specific”). Moreover, in
could be characterized as an emergency. As referenced above, its claim
that safety motivated the subcontract is belied by the complete absence
of contemporaneous reference to that motivation at the time of the plan-
ning, announcement, or implementation of the subcontracting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
order to rely on bargaining history for a waiver, the evidence
must show that the specific issue was “fully discussed and con-
sciously explored during negotiations” and that “the union . . .
consciously yielded or clearly and unmistakably waived its in-
terest in the matter.” Johnson-Bateman, supra at 185. As the
Board explained in Provena, supra at 813:
The waiver standard . . . effectively requires the parties to focus
on particular subjects over which the employer seeks the right
to act unilaterally. Such a narrow focus has two clear benefits.
First, it encourages the parties to bargain only over subjects of
importance at the time and to leave other subjects to future bar-
gaining. Second, if a waiver is won—in clear and unmistaka-
ble language—the employer's right to take future unilateral ac-
tion should be apparent to all concerned.
As referenced above, the labor agreements offer nothing that
aids DuPont in meeting the clear and unequivocal waiver stand-
ard. Nothing shows a mutual intention to permit unilateral em-
ployer action with respect to subcontracting of the ERT program.
Moreover, the bargaining history demonstrates the opposite of a
bargaining waiver. The bargaining history shows that time and
time again, going back over a decade, the parties bargained over
and agreed to changes that DuPont (or the Union) wanted to
make regarding the ERT program. There is no waiver on this
record.20
In sum, for all of these reasons, the Respondent violated Sec-
tion 8(a)(5) of the Act by failing and refusing, since on or about
June 19, 2018, to bargain over the decision to subcontract the
emergency services work performed by unit employees at the
Spruance plant.21
3. Effects bargaining
As referenced above, the complaint generally alleges (GC
Exh. 1(c) at ¶¶ 6 &10) that the Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to bargain over
the emergency services work. As discussed above, as I have
found, the Respondent unlawfully refused to bargain over the de-
cision to subcontract the emergency services work. Apart from
its duty to bargain over the decision to subcontract the emer-
gency services, the duty to bargain includes the obligation to bar-
gain over the effects of that decision. First National Mainte-
nance, supra at 681.
The Respondent does not dispute that it had an obligation to
20 DuPont suggests (R. Br. at 20 & 31) that a waiver of the right to
bargain the subcontracting of emergency services can be found in the
Union’s July 2017 failure to request bargaining when informed of
DuPont’s intention to sell the Spruance plant’s utilities operations to Ve-
olia. The singular sale of these operations—for which, by the way,
DuPont continued to provide emergency services—was far too dissimilar
to provide a basis for a clear and unmistakable waiver of the duty to bar-
gain over the subcontracting of ERT. Owens-Corning Fiberglas, 282
NLRB 609, 613 (1987) (no waiver because “the historical changes were
not the same as this one”); Provena, 350 NLRB at 815 fn. 35. Even more
unusual is the claim (R. Br. at 31) that the Union waived the right to
bargain over the subcontracting by not raising the issue in negotiations
for the 2018 Agreement. Putting aside that, in fact, Addendum E to the
2018 Agreement appears to restrict unilateral contracting out, the nego-
tiations for the 2018 Agreement occurred at the very time that DuPont
was refusing to bargain over the subcontracting decision. DuPont cannot
bargain the effects of its decision. Rather, it contends that it re-
peatedly offered and tried to do so, but that the Union refused,
thereby waiving the right to bargain effects.
The problem with the Respondent’s argument is that its offer
to bargain the effects was at all times made in the context of its
unlawful refusal to bargain over the subcontracting decision.
“Where, as here, a union is entitled to bargain over both the de-
cision and its effects, the employer must provide the union a
prior or contemporaneous opportunity to bargain over the former
to fully satisfy its obligation to bargain over the latter.” Interna-
tional Game Technology, 366 NLRB No. 170, slip op. at 1 fn. 3
& 10 (2018). See Solutia, Inc., 357 NLRB 58, 65 (2011) (“Re-
spondent's limited offer to bargain only over the latter [the ef-
fects] without the former [the decision] was insufficient to satisfy
its obligations as to either”) and cases cited therein; enfd. 699
F.3d 50 (1st Cir. 2012); Dan Dee West Virginia Corp., 180
NLRB 534, 539 (1970) (“It may be true that the Union avoided
bargaining about the effects of the change, but bargaining on that
subject was premature until the matter of the change was re-
solved or an impasse reached on it.”)
The duty to bargain over the emergency services included the
duty to bargain over the decision and the effects of the decision
to subcontract. Given the Respondent’s unlawful failure to bar-
gain over the subcontracting decision, the Respondent failed to
satisfy its duty to bargain over the effects of that decision.
B. The unilateral implementation of the emergency services
subcontracting
The complaint alleges that the Respondent violated Section
8(a)(5) and (1) of the Act by, about September 1, 2018, unilater-
ally subcontracting emergency services work performed by unit
employees. (GC Exh. 1 at ¶7.)
In NLRB v. Katz, 369 U.S. 736 (1962), the Supreme Court held
that a unionized employer’s unilateral change in employment
terms without providing the union notice and an opportunity to
bargain is a violation of Section 8(a)(5).
Although sharing the same premise—in that the unilateral
change must be regarding a mandatory subject of bargaining—
this duty to refrain from unilateral action is “[s]eparate from the
duty to bargain upon request.” Raytheon Network Centric Sys-
tems, 365 NLRB No. 161, slip op. at 4 (2017).
Here, for the reasons described above, DuPont had a duty to
rely on its affirmative (and unlawful) refusal to bargain to establish a
simultaneous waiver by the Union.
21 The complaint alleges a violation of the Act since June 18, 2018.
However, as set forth above, the June 18 meeting between DuPont and
the union presidents was brief and the record does not show a refusal to
bargain. Rather, when he heard about the subcontracting decision,
ARWI President Palmore told Holmes that he wanted DuPont to meet
with the ARWI executive committee. The record shows Palmore asked
at the meeting if DuPont was “going to bargain it” but the record does
not show what the answer was. DuPont promptly scheduled a meeting
the next day, June 19, with the ARWI executive committee, and at that
meeting made it clear that DuPont was refusing to bargain over the sub-
contracting decision. Accordingly, I find a violation beginning June 19,
2018. I also note that a violation of Sec. 8(a)(5) is a derivative violation
of Sec. 8(a)(1). Tennessee Coach Co., 115 NLRB 677, 679 (1956), enfd.
237 F.2d 907 (6th Cir. 1956). See, ABF Freight System, 325 NLRB 546
fn. 3 (1998). Hence, I will find a Sec. 8(a)(1) violation, as alleged.
DUPONT SPECIALTY PRODUCTS USA, LLC 19
provide notice and an opportunity to bargain over the decision to
subcontract the emergency services. It refused to bargain, and,
therefore, the September 1, 2018 unilateral implementation of
the subcontracting was a violation of Section 8(a)(5) and, deriv-
atively, 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent DuPont Specialty Products USA, LLC, as
a successor to E. I. du Pont de Nemours and Company (DuPont)
is an employer engaged in commerce within the meaning of Sec-
tion 2(2), and (6), of the Act.
2. The Charging Party Ampthill Rayon Workers, Inc., Local
992, International Brotherhood of DuPont Workers (Union or
ARWI) is a labor organization within the meaning of Section
2(5) of the Act.
3. The ARWI is the designated collective-bargaining repre-
sentative of the following appropriate bargaining unit of the Re-
spondent’s employees at the Spruance plant, Richmond, Vir-
ginia:
All production, maintenance, service and Plant technical
hourly wage roll employees at the Plant included within the
unit appropriate for collective bargaining purposes certified in
an order of the National Labor Relations Board in cases Nos.
5‒R‒2724, 5‒R‒2773, 5‒R‒2791 bearing date of January 31,
1947, but excluding all employees classified as instructors, in-
structresses, security officers, United Service Employees, em-
ployees when working as relief supervisors and supervisors-in-
training, and all supervisory employees set forth ln said cases
with the authority to hire, promote, discharge, discipline or oth-
erwise effect changes in the status of employees or effectively
recommend such action.
4. The Respondent violated Section 8(a)(5) and (1) of the Act,
since on or about June 19, 2018, by failing and refusing to bar-
gain collectively with the Union over the decision to subcontract
the Spruance plant emergency services work, and over the ef-
fects of that decision.
5. The Respondent violated Section 8(a)(5) and (1) of the Act,
since on or about September 1, 2018, by subcontracting the Spru-
ance plant emergency services work without affording the Union
an opportunity to bargain with respect to this conduct.
6. The unfair labor practices committed by the Respondent
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent shall, upon request, bargain with the Union
over the decision to subcontract the Spruance plant emergency
services work and over the effects of that decision.
22 No showing of undue burden was made at the unfair labor practice
hearing. There was some suggestion at the hearing (Tr. 363) and on brief
(R. Br. at 16) that a return to the status quo ante would require DuPont
to undo its January 2019 agreement to continue to provide Veolia, its
Spruance plant utilities operator, with emergency services. But this does
The Respondent shall, before implementing any changes in
wages, hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of the unit
employees.
The Respondent shall restore the status quo ante by transfer-
ring the work the Respondent subcontracted back to unit employ-
ees. “It is well settled that restoration of the status quo is the
appropriate remedy for decision violations, absent a showing that
it would be unduly burdensome.” Rigid Pak Corp., 366 NLRB
No. 137, slip op. at 5 (2018) (see also cases cited therein). At
the compliance stage of the proceeding, the Respondent will be
permitted to argue and present supporting evidence that restoring
the status quo ante would be unduly burdensome. San Luis
Trucking, Inc., 352 NLRB 211, 211 fn. 5 (2008); Allied General
Services, 329 NLRB 568, 569 (1999); Lear Siegler, Inc., 295
NLRB 857, 861–862 (1989).22
The Respondent shall make unit employees whole for any loss
of earnings and other benefits suffered as a result of the unlawful
subcontracting, in the manner prescribed in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest as prescribed in New Horizon, 283 NLRB 1173
(1987) and compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). In accordance with Don
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014), the Respondent shall compensate the employees for the
adverse tax consequences, if any, of receiving lump sum backpay
awards, and, in accordance with AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), the Respondent shall, within 21 days
of the date the amount of backpay is fixed either by agreement
or Board order, file with the Regional Director for Region 5 a
report allocating backpay to the appropriate calendar year for
each of the affected employees. The Regional Director will then
assume responsibility for transmission of the report to the Social
Security Administration at the appropriate time and in the appro-
priate manner.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted in the Respondent’s facility wherever the notices to em-
ployees are regularly posted for 60 days without anything cover-
ing it up or defacing its contents. In addition to physical posting
of paper notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed any facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees em-
ployed by the Respondent at any time since June 19, 2018. When
the notice is issued to the Respondent, it shall sign it or otherwise
notify Region 5 of the Board what action it will take with respect
not follow. DuPont’s agreement with Veolia (R. Exh. 53) requires
DuPont—not FDM or another contractor—to provide services to the util-
ities operation. These emergency services were provided by DuPont em-
ployees before the subcontracting and can be resumed as part of the re-
turn to the status quo.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
to this decision
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended23
ORDER
DuPont Specialty Products USA, LLC, as a successor to E.I.
du Pont de Nemours and Company, Richmond, Virginia, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the
Ampthill Rayon Workers, Inc., Local 992, International Broth-
erhood of DuPont Workers (Union or ARWI) over the decision
to subcontract the Spruance plant emergency services work and
over the effects of that decision.
(b) Subcontracting the Spruance plant emergency services
work without first notifying the Union and giving it an oppor-
tunity to bargain over the subcontracting decision and over the
effects of that decision.
(c) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) On request, bargain with the Union over the decision to
subcontract the Spruance plant emergency services work and the
effects of that decision, for the following appropriate unit:
All production, maintenance, service and Plant technical
hourly wage roll employees at the Plant included within the
unit appropriate for collective bargaining purposes certified in
an order of the National Labor Relations Board in cases Nos.
5‒R‒2724, 5‒R‒2773, 5‒R‒2791 bearing date of January 31,
1947, but excluding all employees classified as instructors, in-
structresses, security officers, United Service Employees, em-
ployees when working as relief supervisors and supervisors-in-
training, and all supervisory employees set forth ln said cases
with the authority to hire, promote, discharge, discipline or oth-
erwise effect changes in the status of employees or effectively
recommend such action.
(b) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees,
notify and, on request, bargain with the Union as the exclusive
collective-bargaining representative of employees in the unit de-
scribed above.
(c) Restore the status quo ante by transferring the emergency
services work the Respondent subcontracted back to unit em-
ployees.24
(d) Make the unit employees whole for any loss of earnings
and other benefits suffered as a result of the subcontracting of
the emergency services work, in the manner described in the
23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
24 At the compliance stage of the proceeding, the Respondent will be
permitted to argue and present supporting evidence that restoring the sta-
tus quo ante would be unduly burdensome. San Luis Trucking, Inc., 352
remedy section of this decision.
(e) Compensate unit employees affected by the subcontract-
ing of the emergency services work for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards and file
with the Regional Director for Region 5, within 21 days of the
date the amount of back pay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the appro-
priate calendar years for each employee.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(g) Within 14 days after service by the Region, post at its
headquarters at the Spruance plant copies of the attached notice
marked “Appendix.”25 Copies of the notice, on forms provided
by the Regional Director for Region 5, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since June 19, 2018.
(h) Within 21 days after service by the Region, file with the
Regional Director for Region 5 a sworn certification of a respon-
sible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. October 11, 2019
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
NLRB 211, 211 fn. 5 (2008); Allied General Services, 329 NLRB 568,
569 (1999); Lear Siegler, Inc., 295 NLRB 857, 861–862 (1989).
25 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
DUPONT SPECIALTY PRODUCTS USA, LLC 21
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to bargain collectively with the
Union, the Ampthill Rayon Workers, Inc., Local 992, Interna-
tional Brotherhood of DuPont Workers, over our decision to sub-
contract the Spruance plant emergency services work or over the
effects of that decision.
WE WILL NOT subcontract the Spruance plant emergency ser-
vices work without first notifying the Union and giving it an op-
portunity to bargain over the decision and over the effects of that
decision.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of the rights listed above.
WE WILL, upon request, bargain with the Union over the deci-
sion to subcontract the Spruance plant emergency services work
and the effects of that decision, for the following unit:
All production, maintenance, service and Plant technical
hourly wage roll employees at the Plant included within the
unit appropriate for collective bargaining purposes certified in
an order of the National Labor Relations Board in cases Nos.
5‒R‒2724, 5‒R‒2773, 5‒R‒2791 bearing date of January 31,
1947, but excluding all employees classified as instructors, in-
structresses, security officers, United Service Employees, em-
ployees when working as relief supervisors and supervisors-in-
training, and all supervisory employees set forth ln said cases
with the authority to hire, promote, discharge, discipline or oth-
erwise effect changes in the status of employees or effectively
recommend such action.
WE WILL before implementing any changes in your wages,
hours, or other terms and conditions of employment, notify and,
on request, bargain with the Union as the exclusive collective-
bargaining representative of employees in the unit described
above.
WE WILL restore the status quo ante by transferring the emer-
gency services work that we subcontracted back to unit employ-
ees.
WE WILL make unit employees whole for any loss of earnings
and other benefits suffered as a result of the subcontracting of
the emergency services work.
WE WILL compensate unit employees for the adverse tax con-
sequences, if any, of receiving lump-sum backpay awards, and
WE WILL file with the Regional Director for Region 5, within 21
days of the date the amount of backpay is fixed, either by agree-
ment or Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
DUPONT SPECIALTY PRODUCTS USA, LLC, AS A SUCCESSOR TO
E.I. DU PONT DE NEMOURS AND COMPANY
Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05-CA-222622 by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.