E. I. DuPont de Nemours & Co., Inc.

National Labor Relations Board - Board Decisions

Sep 13, 2019

368 NLRB No. 73 (N.L.R.B. 2019)

368 NLRB No. 73
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.
E. I. Dupont De Nemours & Co., Inc. and United Steel-
workers International Union and its Local 6992.
Case 03–CA–096616
September 13, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
This case involves certain annual unilateral changes to
Beneflex, a corporate-wide employee cafeteria-style ben-
efits plan maintained by the Respondent, E. I. DuPont de
Nemours and Company. Upon a charge filed January 18,
2013, by United Steelworkers International Union and its
Local 6992 (the Union), the General Counsel issued a
complaint on March 21, 2013, alleging that the Respond-
ent violated Section 8(a)(5) and (1) of the National Labor
Relations Act in 2013, following expiration of its collec-
tive-bargaining agreement (CBA), by implementing sev-
eral unilateral changes in this benefits plan as applied to
bargaining-unit employees at the DuPont plant in To-
nawanda, New York. The Respondent filed an answer
denying that it violated the Act.
On December 27, 2013, the Respondent, Union, and
General Counsel filed a joint motion to waive a hearing
before an administrative law judge and to submit this case
directly to the Board for a decision based on a stipulated
record. On June 30, 2014, the Board granted the parties’
motion. Thereafter, the Respondent and General Counsel
each filed a brief and a responsive brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In Raytheon Network Centric Systems, 365 NLRB No.
161 (2017), the Board analyzed essentially the same alle-
gation as in this case, i.e., that the respondent there vio-
lated Section 8(a)(5) of the Act following expiration of its
CBA when it unilaterally modified employee medical
benefits and related costs consistent with what it had done
unilaterally in the past. In that decision, the Board, relying
on NLRB v. Katz, 369 U.S. 736, 746 (1962), and Board
cases dating back to 1964, held that “actions constitute a
‘change’ only if they materially differ from what has oc-
curred in the past.” Raytheon, slip op. at 10. The Board
also held this principle applies regardless whether a CBA
was in effect when the past practice was created, and re-
gardless whether no CBA existed when the disputed

1 Our dissenting colleague briefly reiterates and relies on the argu-
ments previously made in the Raytheon and DuPont (Edgemoor) dis-
sents. For the reasons fully set forth in the majority opinions in each of
actions were taken. Id., slip op. at 13. Finally, the Board
found that actions consistent with an established practice
do not constitute a change requiring bargaining simply be-
cause they may involve some degree of discretion. Id.,
slip op. at 16. Accordingly, the Board dismissed the com-
plaint’s allegation that the respondent violated Section
8(a)(5) by making benefit plan modifications without giv-
ing prior notice and opportunity to bargain to the union
representative of affected bargaining-unit employees.
Raytheon overruled E.I. du Pont de Nemours, 364
NLRB No. 113 (2016) (DuPont 2016), where a divided
Board held that an employer’s actions consistent with an
established past practice constitute a change, and therefore
require the employer to provide the union with notice and
an opportunity to bargain prior to implementation, if the
past practice was created under a management-rights
clause in a CBA that has expired, or if the employer’s
challenged actions involved any discretion. On October
11, 2018, the Board applied Raytheon in the aforemen-
tioned DuPont case, on remand from the United States
Court of Appeals for the District of Columbia Circuit, to
find that post–contract expiration unilateral modifications
of Beneflex plan benefits at two other DuPont plants were
lawful. E.I. DuPont de Nemours (Edgemoor), 367 NLRB
No. 12 (2018).
The Beneflex plan benefit changes at issue in this case
are indistinguishable as a legal matter from those made in
the Edgemoor case. They were made at the same time as
in past years, applied to unit and nonunit employees alike,
and did not materially differ in terms of discretion from
actions taken in past years. Accordingly, as in the Edge-
moor case, Raytheon controls and compels a finding that
the Respondent did not violate the Act by making the
Beneflex plan changes at issue here without providing the
Union advance notice and the opportunity for bargaining.1
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 13, 2019
______________________________________
John F. Ring, Chairman
the cited decisions, we adhere to that precedent and find no merit in the
arguments raised in the dissenting opinions.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
_____________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
The majority treats this case as governed by two recent
Board decisions—Raytheon1 and DuPont (Edgemoor),2
applying Raytheon—which mistakenly gave employers
broad power to make unilateral changes in employees’
terms and condition of employment, pursuant to a sup-
posed past practice established under a contractual man-
agement-rights provision, although that provision expired
with the collective-bargaining agreement. I dissented in
both cases, and so I dissent here as well. In my view, this
case should be decided under the precedent overruled in
Raytheon, DuPont 2016.3 And under that decision, it is
clear that the Respondent violated Section 8(a)(5) of the
Act in making the unilateral changes at issue here.
The stipulated issue presented is whether the Respond-
ent had a duty to bargain with the Union before imple-
menting several changes in January 2013 to its corporate-
wide employee Beneflex benefits plan, as applied to bar-
gaining-unit employees at the DuPont plant in To-
nawanda, New York. In DuPont 2016 the Board found
unlawful unilateral changes made in the Beneflex plan
benefits for union-represented employees at two other
DuPont plants. The Board rejected the argument that an
employer’s supposed past practice of discretionary unilat-
eral changes, made pursuant to a contractual management
rights clause, authorized the employer to continue making
such changes even after expiration of the contract. The
Board there specifically responded to questions that had
been posed earlier by the United States Court of Appeals
for the District of Columbia, reaffirming Board precedent
defining the status quo that an employer must maintain—
without change—when a contract expires and while the
parties negotiate a successor bargaining agreement.
Raytheon, however, overruled DuPont 2016, and in this
case the Board majority again applies the Raytheon “past
practice” rationale to dismiss unilateral change allegations
with respect to broad and discretionary postexpiration
changes in the Beneflex plan for bargaining unit employ-
ees at the DuPont Tonawanda plant. As then-Member
Pearce and I explained in our Raytheon dissent,4 the ma-
jority’s holding is flatly contrary to the Supreme Court’s
decision in NLRB v. Katz, 369 U.S. NLRB 736 (1962),5
and it represents an impermissible policy choice—frus-
trating, instead of encouraging, the collective-bargaining
process. That result reflects the arbitrary and unfair pro-
cess by which the Raytheon majority reached its decision
and applied it in both DuPont cases.6
For all of the reasons offered here, and in the DuPont
(Edgemoor) and Raytheon dissents, I believe that the
Board should not—and, indeed, cannot—apply those de-
cisions here. Instead, following Dupont 2016, the Board
should find that the Respondent violated Section 8(a)(5),
as alleged.
Dated, Washington, D.C. September 13, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD

1 Raytheon Network Centric Systems, 365 NLRB No. 161 (2017).
2 E.I. DuPont de Nemours (Edgemoor), 367 NLRB No. 12 (2019).
3 E.I. DuPont de Nemours, 364 NLRB No. 113 (2016).
4 Raytheon, supra, 365 NLRB No. 161 slip op. at 21–34 (dissent).
5 Under the status quo doctrine as set forth in Katz, the Respondent
had the statutory obligation under Sec. 8(a)(5) of the Act to adhere to the
terms and conditions of employment that existed at the expiration of the
2008–2012 contract, until it bargained to a new agreement or reached a
valid impasse in overall bargaining for a new collective-bargaining
agreement. Until such time, the Beneflex benefits in effect at the con-
tract’s expiration were the status quo subject to this statutory bargaining
obligation.
6 As fully discussed in the Raytheon and DuPont Edgemoor dissents,
the current Board has impermissibly abandoned a past practice of provid-
ing advance notice and inviting responsive briefing prior to reconsider-
ing precedent on issues of major significance to the public we serve. The
majority gave no such notice and opportunity to the parties and public in
Raytheon. It failed to give such notice and opportunity to the unions who
were at that time parties to litigation of DuPont 2016 before the U.S.
Court of Appeals for the District of Columbia Circuit, and it failed to
give notice and opportunity to the different union representing the bar-
gaining unit employees in this proceeding, which was pending before the
Board during consideration of Raytheon.