E. I. Dupont DeNemours & Company

National Labor Relations Board - Board Decisions

Sep 4, 2019

368 NLRB No. 48 (N.L.R.B. 2019)

368 NLRB No. 48
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. Du Pont De Nemours and Company and Ampthill
Rayon Workers, Inc., Local 992 International
Brotherhood of Dupont Workers.
E.I. Du Pont De Nemours and Company and Freon
Craftsman Union, Local 788, International
Brotherhood of Dupont Workers.
E.I. Du Pont De Nemours and Company and Interna-
tional Brotherhood of Dupont Workers (IBDW),
Local 593, Old Hickory Employees Council.
Cases 05–CA–090984, 09–CA–091793, and 26–
CA–092629.
September 4, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On January 1, 2013, the Respondent implemented cer-
tain unilateral changes to its company-wide Dental Assis-
tance Program (DAP) and Medical Care Assistance Pro-
gram (MEDCAP) retirement benefit plans. These changes
affected coverage for the Respondent’s Medicare-eligible
retirees (MERs) and their covered dependents. At the
time, DAP and MEDCAP covered all of the Respondent’s
employees nationwide hired before January 1, 2007,1 in-
cluding the approximately 1400 employees represented in
separate bargaining units by the Charging Party Unions2
in this consolidated proceeding. One of the conditions on
which the Respondent had offered, and the Unions had ac-
cepted, the unit employees’ participation in DAP and
MEDCAP was that the Respondent reserved the right to
make changes to the plans or to terminate them entirely.
Exercising that reserved right, the Respondent made at
least 50 unilateral changes to DAP and MEDCAP over the
years, without objection by the Unions. Nevertheless, the

1 Effective December 20, 2006, the Respondent limited eligibility for
retiree benefits under DAP and MEDCAP to employees hired before Jan-
uary 1, 2007, and their covered dependents. See E.I. DuPont de Nemours
and Co., 367 NLRB No. 145, slip op. at 3 (2019) (DuPont I).
2 The Charging Party Unions are Ampthill Rayon Workers, Inc., Lo-
cal 992, International Brotherhood of DuPont Workers (Local 992);
Freon Craftsman Union, Local 788, International Brotherhood of DuPont
Workers (Local 788); and International Brotherhood of DuPont Workers
(IBDW), Local 593, Old Hickory Employees Council (Local 593).
3 On December 16, 2013, Administrative Law Judge Michael A.
Rosas issued the attached decision. The Respondent filed exceptions and
a supporting brief, the General Counsel filed an answering brief, and the
Respondent filed a reply brief. Additionally, the General Counsel filed
Unions challenged the 2013 changes, and the judge found
that the Respondent violated Section 8(a)(5) of the Act by
implementing them unilaterally.
In DuPont I, supra, we found that the Respondent’s De-
cember 2006 unilateral changes to MEDCAP and DAP at
its Ampthill, Virginia facility were lawful because Local
992 waived its right to bargain over those changes. As
explained below, the record in this case similarly estab-
lishes, based on the language of the parties’ collective-bar-
gaining agreements, the parties’ bargaining history and
their past practice, that Local 992 and the other Charging
Party Unions in this proceeding waived their right to bar-
gain over the changes implemented by the Respondent in
2013. Accordingly, the Respondent made those changes
lawfully, and we shall dismiss the complaint.3
FACTS
Background
The Respondent manufactures synthetic fibers and re-
lated products at various facilities throughout the United
States. In 2013, one or another of various unions repre-
sented approximately 3700 of the Respondent’s 34,000
employees nationwide.
The three facilities involved in this case are located in
Richmond, Virginia; Nashville, Tennessee; and Louis-
ville, Kentucky.4 The Respondent employs approximately
2500 employees at the Richmond facility, of which ap-
proximately 1170 are hourly production and maintenance
(P&M) workers and clerical, technical and office (CT&O)
workers that Local 992 has represented in separate bar-
gaining units for over 50 years. In 2013, the collective-
bargaining agreement between the Respondent and Local
992 for the P&M unit had been in effect since September
1, 2012, and the agreement for the CT&O unit had been in
effect since October 1, 2000. So far as this proceeding is
concerned, the provisions of these agreements are identi-
cal. Accordingly, for the sake of convenience, we shall
refer to the two agreements at the Richmond facility in the
singular.
limited cross-exceptions and a supporting brief, and the Respondent filed
an answering brief.
The National Labor Relations Board has delegated its authority in this
proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with this Decision and
Order.
4 The Richmond facility is located in Ampthill, Virginia, which is
close to Richmond. That plant is sometimes referred to as the Spruance
facility. The Nashville facility is located in the Old Hickory section of
Nashville and is sometimes referred to as the Old Hickory plant. We will
refer to the facilities as the Richmond, Nashville, and Louisville facili-
ties.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent employs approximately 170 individu-
als at its Louisville facility. Approximately 96 of these
employees are hourly production, maintenance, and cleri-
cal employees represented by Local 788. A predecessor
union to Local 788, the Neoprene Craftsmen’s Union
(NCU), represented production and maintenance employ-
ees at this facility for approximately 50 years. In June
2002, the NCU voted to affiliate with the Paper, Allied-
Industrial, Chemical and Energy Workers International
Union (PACE) and became PACE Local 5-2002. In April
2005, PACE merged with the United Steelworkers of
America and became USW. Then, in May 2010, the pro-
duction and maintenance employees at the Louisville fa-
cility voted to disaffiliate from the USW and form Local
788. Local 788 adopted its predecessor’s collective-bar-
gaining agreement with the Respondent, effective Sep-
tember 7, 2010.
Finally, the Respondent employs approximately 240 in-
dividuals at its Nashville facility. Approximately 120 of
these employees are hourly production and maintenance
workers in a bargaining unit that has been represented for
more than 50 years by Local 593. The most recent collec-
tive-bargaining agreements between the Respondent and
Local 593 are dated April 7, 1976; February 13, 1987; and
July 25, 1995. The 1995 collective-bargaining agreement
is still in effect.
At all relevant times, the Respondent has maintained
company-wide employee benefit plans (as opposed to site-
specific or regional plans)5 for all its employees in the
United States, regardless of whether they are represented
by a labor organization. Approximately 80,000 retirees
and their covered dependents also participate in the Re-
spondent’s company-wide benefit plans. This company-
wide system of benefits allows all of the Respondent’s em-
ployees, regardless of location, job title, or union affilia-
tion, to receive the same benefits based on years of service
and other criteria. Also, this benefit system makes it easier
for the Respondent to administer the plans and comply
with applicable legal requirements, and it provides signif-
icant economies of scale that allow the Respondent to of-
fer plan participants lower premiums and better service.
Nevertheless, the Respondent has regularly informed the
Unions that it would negotiate separate plans for union-
represented employees if requested to do so. The Unions,
however, have consistently agreed to participate in the
company-wide plans.

5 Before MEDCAP was introduced at the Richmond facility in the
1980s, however, the unit employees at that facility were covered by a
site-specific hospital and medical-surgical plan.
6 During a meeting in March 1976, a Local 992 representative asked
the Respondent whether Local 992 could bargain over DAP on a local
Each of the Respondent’s company-wide benefit plans
contains a “reservation-of-rights” provision. These provi-
sions state that the Respondent retains the right to modify
or terminate the benefit plan at its discretion. The collec-
tive-bargaining agreements applicable to the Respond-
ent’s union-represented worksites contain an “Industrial
Relations Plans and Practices” (IRP&P) article. Section 1
of the IRP&P article lists company-wide benefit plans
available to employees at the worksite. Consistent with
the reservation-of-rights provisions in those plans, the
IRP&P article recognizes the Respondent’s right to make
changes to the listed benefit plans and to do so unilaterally,
subject to certain restrictions set forth in the IRP&P article
and the benefit plan documents themselves.
DAP and MEDCAP
The Respondent created DAP in 1976 and offered it na-
tionwide to eligible employees and retirees. The DAP
plan document and accompanying summary plan descrip-
tion both contained reservation-of-rights provisions that
reserved to the Respondent the right to suspend, modify,
or terminate DAP at any time. Subsequent versions of the
DAP plan document and summary plan description have
included virtually identical reservation-of-rights provi-
sions. Specifically, the reservation-of-rights language in
the DAP plan document stated: “The Company reserves
the sole right to amend or discontinue the plan at its dis-
cretion by action of the Executive Committee. Any
change which has the effect of reducing or terminating
benefits hereunder will not be effective until one year fol-
lowing announcement of such change by the Company.”
At the Richmond, Nashville, and Louisville facilities,
the Respondent presented the Unions with the DAP plan
document and offered the unit employees the opportunity
to participate in DAP on the same basis as nonunion em-
ployees, subject to the terms of the DAP plan document.
Each of the Unions accepted this offer. More specifically,
at the Richmond facility, Local 992 agreed to accept DAP
on the Respondent’s terms after the Respondent rejected
Local 992’s proposal to bargain DAP on a local basis.6
DAP was then added to the list of plans in the IRP&P ar-
ticle of the parties’ contract. Similarly, at the Louisville
facility, Local 788’s predecessor union agreed to partici-
pate in DAP, and DAP was added to the list of available
benefit plans in the IRP&P article of the parties’ 1976 col-
lective-bargaining agreement. And at the Nashville facil-
ity, DAP was added to the list of IRP&P plans in the 1976
agreement between the Respondent and Local 593.
basis. A representative of the Respondent stated that since DAP is a
company-wide plan, the Respondent could not agree to change the plan.
The Respondent told the Union that it would be willing to seriously con-
sider and bargain over local plan alternatives.
E.I. DU PONT DE NEMOURS AND COMPANY 3
Again, the IRP&P article in each of these contracts in-
cluded language acknowledging the Respondent’s right to
make unilateral changes to benefit plans listed in that arti-
cle.
Local 788’s predecessor and Local 593 used the follow-
ing language in Section 1 of their IRP&P articles: “All ex-
isting privileges heretofore enjoyed by the employees in
accordance with the following Industrial Relations Plans
and Practices of the Company shall continue, subject to
the provisions of such Plans” (emphasis added). Local
992 used similar language in its IRP&P article, but added
a provision stating that “any change in these Plans and
Practices which has the effect of reducing or terminating
benefits will not be made effective until one (1) year after
notice to the UNION by the COMPANY of such change.”
The DAP reservation-of-rights language has remained vir-
tually unchanged since 1976, and the Respondent’s union-
represented employees have participated in DAP on the
same basis as the Respondent’s nonunion employees.
In 1983, the Respondent created MEDCAP, a company-
wide healthcare plan, and offered it to its employees and
retirees nationwide. Each iteration of the MEDCAP plan
document and summary plan description has included the
same reservation-of-rights provision, stating: “[The]
Company reserves the right to amend any provision of this
Program or terminate the Program in its entirety should
either course of action be deemed necessary by the Com-
pany.” Further, the MEDCAP summary plan description
states: “While the Company intends to continue the bene-
fits and policies described in this booklet, the Company
reserves the right to suspend, modify, or terminate this
Plan at its discretion at any time.”
The Respondent offered Local 593, 992, and 788’s pre-
decessor the opportunity to participate in MEDCAP sub-
ject to the above-stated reservation of rights, and each Un-
ion accepted. Specifically, in 1983, Local 593 agreed to
participate in MEDCAP, and MEDCAP was added to the
Hospital and Medical-Surgical (HMS) article of the par-
ties’ collective-bargaining agreement through a supple-
mental agreement. The HMS article required the Re-
spondent to provide coverage to employees and their

7 At all relevant times, art. II, sec. 3 of Local 992’s collective-bar-
gaining agreement with the Respondent contained the following provi-
sion: “This Agreement constitutes the entire agreement between the par-
ties hereto as of the execution date hereof. However, any supplement
which may hereafter be mutually agreed upon between the parties, when
executed in the same manner as this Agreement, shall become and be
part of this Agreement.” Further, Local 788’s collective-bargaining
agreement with the Respondent contained the following provision: “This
Agreement supersedes all previous agreements, understandings, prac-
tices, and interpretations which are incompatible or inconsistent with any
provisions herein contained and this Agreement constitutes the entire
Agreement between the parties hereto as of the execution date thereof.
covered dependents “as set forth in the terms and condi-
tions of the Summary Plan Description,” which included
the reservation-of-rights clause. Local 788’s predecessor
reached a similar agreement in 1984 regarding MEDCAP
coverage; MEDCAP was added to the HMS provision of
the collective-bargaining agreement; and the HMS article
similarly required the Respondent to provide coverage “as
set forth in the terms and provisions of the Summary Plan
Description,” which again contained the reservation-of-
rights clause.7
As described more fully in DuPont I, supra, slip op. at
2, 6, the Respondent and Local 992 bargained specifically
over MEDCAP’s reservation-of-rights clause. During a
meeting in March 1986, Local 992 proposed to delete that
clause and retain the plan without it. The Respondent re-
jected this proposal, stating that the reservation-of-rights
clause “is standard language in all corporate plans” and
that it would not present a corporate plan without the
clause, but adding that employees did not have to choose
“the Aetna plan” if they were concerned.8 At another
meeting, Local 992 asked the Respondent why MEDCAP
included a reservation-of-rights clause when the Blue
Cross-Blue Shield Plan did not have one. The Respondent
replied that MEDCAP was a company-wide plan and Blue
Cross-Blue Shield was a local plan. After some 10 months
of negotiations, Local 992 finally accepted MEDCAP, in-
cluding its reservation-of-rights clause.
Local 992 and the Respondent then discussed where to
refer to MEDCAP in their collective-bargaining agree-
ment. Local 992 proposed including it in the IRP&P arti-
cle, where it is recognized that the Respondent has the
right to make changes unilaterally. The Respondent re-
jected this proposal because it did not want to be restricted
by the 1-year notice language in the IRP&P article. After
further discussion, the parties agreed to refer to the
MEDCAP plan in the HMS provision, although not ex-
plicitly. The relevant language in the HMS provision
stated that the Respondent “may make available to em-
ployees alternate hospital medical-surgical coverage
plans, and any employee may elect such alternate
However, any amendment which may hereafter be mutually agreed upon
between the parties, when executed in the same manner as this Agree-
ment, shall become and be a part of this Agreement.”
8 Record evidence shows that, at the Richmond facility, the parties
often referred to MEDCAP as the Aetna Plan because Aetna was the plan
administrator for the Richmond facility. The parties also often casually
referred to the reservation-of-rights clause in the MEDCAP plan docu-
ment as the “management rights” clause. We do not regard this as an
admission on the Respondent’s part that the terms are synonymous—as,
indeed, they are not. See generally Raytheon Network Centric Systems,
365 NLRB No. 161, slip op. at 20–21 (2017) (Member Kaplan, concur-
ring).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
coverage in lieu of the coverage described in the above
sections of this Article.”
BeneFlex
In 1991, the Respondent created a new cafeteria-style
benefits plan for active employees called the BeneFlex
Flexible Benefits Plan (BeneFlex). BeneFlex contains
several subplans, including medical and dental benefit
plans. In the early 1990s, the Respondent offered the Un-
ions the opportunity for unit employees to participate in
BeneFlex on the same basis as nonunion employees, sub-
ject to the terms of the BeneFlex documents. Local 992,
593, and 788’s predecessor all agreed to have their mem-
bers participate in BeneFlex.
Following the Unions’ agreement to participate in
BeneFlex, the Respondent and the Unions deleted refer-
ences to MEDCAP and DAP from their collective-bar-
gaining agreements. Locals 593 and 992 deleted their
HMS articles and the references to DAP in their IRP&P
articles. Local 788’s predecessor deleted the reference to
MEDCAP in its HMS article, and deleted the reference to
DAP in its IRP&P article sometime between 1997 and
2006. Once unit employees began receiving dental and
medical benefits under BeneFlex, they became ineligible
to continue receiving benefits through DAP and
MEDCAP. However, DAP and MEDCAP continued to
cover all current and future retirees (and their covered de-
pendents), provided they continued to meet the eligibility
requirements in the respective plans, and the DAP and
MEDCAP plan documents continued to include the same
reservation-of-rights language described above.9 The
medical and dental benefits offered through BeneFlex
mirror those under MEDCAP and DAP, and changes to
the BeneFlex dental and medical plans have been carried
over and implemented in DAP and MEDCAP.
The Respondent’s Unilateral Changes to DAP and
MEDCAP Prior to 2013
The Respondent assesses its company-wide benefit
plans and plan offerings on an ongoing basis and modifies
the plans or plan offerings as it deems warranted. The Re-
spondent typically announces changes to benefit plans in
the late summer or fall of each year, prior to the open en-
rollment period when employees and retirees may select
their benefit options for the upcoming year. The changes
become effective on January 1 of the next year. Before
the Respondent makes these modifications, it will typi-
cally meet with each union at an impacted worksite. Dur-
ing these meetings, the Respondent will notify the union
of its intention to make the changes and will discuss the

9 As discussed in DuPont I, however, in 2006 the Respondent limited
DAP and MEDCAP retiree coverage to employees hired before January
1, 2007.
changes and attempt to answer questions. However, the
Respondent has not sought the agreement of any of the
Charging Party Unions before implementing the changes.
To the contrary, the Respondent has often informed these
Unions that it would not bargain over changes to its com-
pany-wide plans (including DAP and MEDCAP) because
company-wide plans apply uniformly to all employees,
nonunion and union alike. However, the Respondent has
consistently expressed a willingness to bargain over em-
ployee benefits and to consider any site-specific benefit
plan proposals that the three Unions wished to make.
From 1976 to 2012, the Respondent announced and im-
plemented numerous company-wide changes to DAP and
MEDCAP. Indeed, since 1987, the Respondent has made
at least 50 such changes, including changes in premiums,
deductibles, co-pays, annual plan limits, benefit options,
terms of coverage, and participant eligibility for working
spouses and dependents. Some of the changes increased
benefits, but for the most part, the changes reduced or re-
stricted benefits.
On some occasions, the three Unions requested infor-
mation from the Respondent about the changes and de-
manded to bargain about them. As more fully detailed in
the judge’s decision, the Respondent often provided the
requested information. In a few instances, it agreed to dis-
cuss changes. However, the Respondent rebuffed bar-
gaining demands on the ground that it was entitled to make
the changes under the applicable collective-bargaining
agreement and plan documents. For many years, the Un-
ions did not challenge these refusals to bargain by filing
grievances or unfair labor practice charges or by objecting
in any other way. Local 992 filed an unfair labor practice
charge in 2007 regarding December 2006 unilateral
changes to MEDCAP and DAP.10 Between 2001 and
2007, Local 788’s predecessors filed unfair labor practice
charges against the Respondent, but as the judge found,
these charges related to changes to BeneFlex, not to DAP
or MEDCAP. Finally, the record does not conclusively
establish that Local 593 previously filed a charge about
changes to MEDCAP or DAP: there is conflicting record
evidence as to whether it did, including testimony that it
did not.
The Respondent’s January 2013 Changes
In 2012, the Respondent decided to make additional
changes, effective January 1, 2013, to DAP and MEDCAP
for Medicare-eligible retirees and their covered depend-
ents. Specifically, the Respondent decided to provide sec-
ondary medical and dental benefits to its MERs and their
10 We have found those changes lawful. See DuPont I, above.
E.I. DU PONT DE NEMOURS AND COMPANY 5
covered dependents through a Health Reimbursement
Agreement (HRA). Instead of providing those benefits di-
rectly through DAP and MEDCAP, the Respondent would
now provide each Medicare-eligible retiree with funds to
be used to purchase secondary coverage on the open mar-
ket.11
The Respondent gave Locals 593, 788, and 992 advance
notice of these changes. Each Union objected. In October
2012, each Union wrote to the Respondent to demand that
the changes be rescinded. The Respondent rejected these
requests and stated that it believed it was not required to
bargain with the Unions about the changes. Subsequently,
the Unions filed unfair labor practice charges, which re-
sulted in a consolidated complaint containing the instant
8(a)(5) and (1) allegations. The parties stipulated, and ac-
cordingly it is undisputed, that the 2013 changes to
MEDCAP and DAP are not covered by the parties’ con-
tractual grievance arbitration procedures.
The Judge’s Decision and the Parties’ Exceptions
The judge found that the Respondent violated Section
8(a)(5) and (1) with respect to each Union by unilaterally
implementing the January 2013 changes to MEDCAP and
DAP. In his view, neither the provisions of the applicable
collective-bargaining agreements, the parties’ bargaining
history, or their past practice was sufficient to establish
that Locals 593, 788, and 992 had clearly and unmistaka-
bly waived their right to bargain over the January 2013
changes. The Respondent relevantly excepted. For the
reasons stated below, we find merit to these exceptions.12

11 With this change, which applied company-wide, beginning January
1, 2013, and on January 1 of each year thereafter, each MER in
MEDCAP and DAP would have his or her HRA account credited $1,200
for medical benefits and $200 for dental benefits. The retirees’ Medi-
care-eligible spouses or partners would have the same amounts credited
to the HRA account. The HRA proceeds would then be available to these
individuals to purchase medical and dental insurance on the open market
through a third-party broker (a separate entity not owned or operated by
the Respondent). Thus, pursuant to the 2013 changes, MERs would en-
roll in coverage of their choice within the options provided under
MEDCAP and DAP, as amended. The third-party broker, Extend
Health, would assist retirees in selecting an insurance company and plan.
Unused amounts in MERs’ accounts would roll over and be available in
subsequent years.
The coverage purchased through HRA proceeds is “secondary” be-
cause primary coverage is available through Medicare. These changes
do not apply to retirees and their covered dependents until they become
eligible for Medicare. Retirees and dependents not yet eligible for Med-
icare continue receiving medical and dental coverage under MEDCAP
and DAP under the same terms as existed prior to the implementation of
the 2013 changes.
12 We find no merit to the General Counsel’s exception to the judge’s
factual finding that Local 992 agreed to participate in MEDCAP in 1986.
The General Counsel argues that Local 992 only agreed to participate in
DISCUSSION
Employers have a duty to bargain in good faith with un-
ion representatives about mandatory subjects of bargain-
ing, specifically, wages, hours, and terms and conditions
of employment. NLRB v. Borg-Warner Corp., 356 U.S.
342, 349 (1958). The provision of future retirement
healthcare benefits for active bargaining-unit employees
is a mandatory subject of bargaining under the Act. Chem-
ical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157,
180 (1971). An employer’s unilateral change to an em-
ployment term constituting a mandatory subject of bar-
gaining violates Section 8(a)(5) and (1), absent a valid de-
fense. NLRB v. Katz, 369 U.S. 736, 743 (1962).
One such valid defense is waiver. A party may waive
its right to bargain over a term or condition of employ-
ment, in which case unilateral action is permissible. See
Provena St. Joseph Medical Center, 350 NLRB 808
(2007). Precedent requires that any waiver of statutory
rights be “clear and unmistakable.” Metropolitan Edison
Co. v. NLRB, 460 U.S. 693, 708 (1983).13 Waiver can be
established through the provisions in the parties’ collec-
tive-bargaining agreement, by the conduct of the parties
(including past practice, bargaining history, and action or
inaction), or by a combination of the two. American Dia-
mond Tool, 306 NLRB 570 (1992); see also Columbus
Electric Co., 270 NLRB 686 (1984) (holding that clear
and unmistakable evidence of the parties’ intent to waive
bargaining “is gleaned from an examination of all the sur-
rounding circumstances, including but not limited to bar-
gaining history, the actual contract language, and the com-
pleteness of the collective-bargaining agreement”), enfd.
sub nom. Electrical Workers Local 1466 v. NLRB, 795
the “Aetna Plan,” but, as noted above, the record reflects that the parties
referred to MEDCAP as the “Aetna Plan.” The General Counsel also
contends that the judge erred in finding that Local 788’s predecessors’
unfair labor practice charges from 2001 to 2007 only challenged the Re-
spondent’s unilateral right to change BeneFlex, not MEDCAP and DAP.
This contention is also without merit. Although the Respondent often
implemented the same changes to MEDCAP and DAP as it did to Bene-
Flex, the parties’ relevant stipulations do not mention MEDCAP or DAP,
and they demonstrate that the 2001–2007 charges related solely to Bene-
Flex.
13 The “contract coverage” standard that has been adopted by several
courts of appeals would be inapplicable here because, as described
above, the parties’ collective-bargaining agreements no longer referred
to DAP or MEDCAP at the time of the disputed unilateral changes. See,
e.g., Department of Navy v. FLRA, 962 F.2d 48, 57 (D.C. Cir. 1992);
Chicago Tribune Co. v. NLRB, 974 F.2d 933, 936–937 (7th Cir. 1992);
Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14, 25 (1st Cir. 2007).
We recognize, of course, that the Board has never adopted the “contract
coverage” standard. See Provena St. Joseph Medical Center, 350 NLRB
at 808 (majority adheres to clear-and-unmistakable-waiver standard over
the dissent of then-Chairman Battista, who would have adopted contract
coverage). Chairman Ring and Member Kaplan intend to revisit this is-
sue in a future appropriate case.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
F.2d 150 (D.C. Cir. 1986). Moreover, the Board has rec-
ognized that a clear and unmistakable waiver may be
found based on an “amalgam” of factors, “even though
none of the factors, standing alone, is sufficient to estab-
lish waiver under existing precedent.” Omaha World-Her-
ald, 357 NLRB 1870, 1870 (2011).
The judge separately considered the parties’ contract
language, bargaining history, and past practice and found
each insufficient to establish waiver under existing prece-
dent. We need not pass on these findings or the precedent
on which they rest. Instead, we find that the judge erred
in failing to consider whether these factors, taken together,
establish that the Unions at each of the three facilities
clearly and unmistakably waived their right to bargain
over the 2013 changes to DAP and MEDCAP. Having
conducted that analysis, we find that the Unions did waive
bargaining over those changes. Accordingly, we will dis-
miss the complaint.14
Contract Language
The Board has long held that express provisions in par-
ties’ collective-bargaining agreements can demonstrate

14 In light of our finding that the Union waived bargaining, we find it
unnecessary to pass on the judge’s analysis of the Respondent’s “status
quo” (or “dynamic status quo”) defense. See generally Raytheon Net-
work Centric Systems, above. We also find it unnecessary to pass on the
Respondent’s equitable estoppel defense.
15 The United States Court of Appeals for the District of Columbia
Circuit has disagreed with the Board’s view regarding what evidence is
required to establish that a benefits plan, including reservation-of-rights
language contained in a plan document, has been incorporated by refer-
ence in a collective-bargaining agreement. See BP Amoco Corp. v.
NLRB, 217 F.3d 869 (D.C. Cir. 2000), denying enforcement of Amoco
Chemical Co., 328 NLRB 1220 (1999); Southern Nuclear Operating Co.
v. NLRB, 524 F.3d 1350 (D.C. Cir. 2008), denying enforcement in rele-
vant part of Southern Nuclear Operating Co., 348 NLRB 1344 (2006).
In the court’s view, if a collective-bargaining agreement refers to a ben-
efits plan, the plan is incorporated into the agreement by reference, and
“all of the plan’s clauses, including any reservation of rights clauses, are
also incorporated into the agreement, ‘thereby authoriz[ing] [the em-
ployer] to unilaterally modify the [plan] without the Union’s consent.’”
Southern Nuclear Operating Co., 524 F.3d at 1359 (quoting BP Amoco,
217 F.3d at 874). To meet the court’s standard, contractual references to
a benefit plan need not be detailed or specific; brief, general references
will suffice. See, e.g., BP Amoco, 217 F.3d at 873–874 (finding that
contractual references to “Employee Benefit Plans,” “Benefits Plan
Booklets,” and “Benefit plans for the Company” incorporated the benefit
plans—including their reservation-of-rights clauses—into the collective-
bargaining agreement by reference). The Board, in contrast, has declined
to find reservation-of-rights language contained in a benefits-plan docu-
ment incorporated by reference into a collective-bargaining agreement
unless the agreement expressly incorporates that language by reference,
or at least expressly incorporates the plan document or summary plan
description that contains the reservation-of-rights language. See, e.g.,
Amoco Chemical, 328 NLRB at 1222 (finding no contractual waiver of
the right to bargain where “[t]he local contracts do not specifically incor-
porate the AMP [Amoco Medical Plan] documents let alone the reserva-
tion-of-rights language from the AMP summary plan description”). We
would be willing to reconsider Board precedent regarding incorporation
waiver. American Diamond Tool, 306 NLRB at 570. A
reservation-of-rights clause contained in a plan document,
such as the reservation-of-rights clauses in the DAP and
MEDCAP plan documents, serves as an express waiver of
a union’s right to bargain if the parties’ collective-bargain-
ing agreement incorporates the plan by reference. See,
e.g., Mary Thompson Hospital, 296 NLRB 1245, 1249
(1989), enfd. 943 F.2d 741 (7th Cir. 1991).15
As discussed above, the MEDCAP and DAP plan doc-
uments and summary plan descriptions all included provi-
sions specifically granting the Respondent the right to uni-
laterally modify the terms of those benefit plans. That res-
ervation-of-rights language was referenced in the collec-
tive-bargaining agreements in force between the parties at
the time MEDCAP and DAP were implemented. Thus,
Local 593, Local 992, and the predecessor to Local 788 all
agreed that unit employees’ participation in DAP (and
other company-wide plans) was “subject to the provisions
of such Plans.”16 In addition, all three Unions agreed to
include DAP among the plans listed in the IRP&P article
of the respective collective-bargaining agreements, and
by reference and contractual waivers of bargaining in light of the court’s
decisions in BP Amoco and Southern Nuclear Operating Co. in a future
appropriate proceeding. Our finding that the Unions waived bargaining
over the changes at issue based on an amalgam of factors makes it un-
necessary for us to do so here.
16 The judge erred insofar as he found that the Local 992 agreements
never referenced DAP. To the contrary, the Local 992 agreement in-
cluded DAP among the company-wide plans listed in the IRP&P article.
Contrary to the judge, the contractual waiver of bargaining rights es-
tablished by the agreements covering the Louisville facility applied to
Local 788 after it became the bargaining representative and, critically,
adopted its predecessor’s collective-bargaining agreement with the Re-
spondent. See University of Pittsburgh Medical Center, 325 NLRB 443,
443 fn. 2 (1998), enfd. 182 F.3d 904 (3d Cir. 1999); see also Atrium
Plaza Health Care Center, 317 NLRB 606, 606 (1995), enfd. 101 F.3d
107 (2d Cir. 1996). NLRB v. Burns Int’l Security Services, 406 U.S. 272,
284 fn. 8 (1972), and American Seating, 106 NLRB 250 (1953), cited by
the judge, are not to the contrary. The issue addressed there was whether
a successor union was automatically bound by a predecessor union’s un-
expired collective-bargaining agreement, not whether, as here, a succes-
sor union that agrees to adopt the predecessor union’s agreement is
bound. Eugene Iovine, Inc., 356 NLRB 1056, 1056 fn. 3 (2011), is also
distinguishable, as the issue addressed there was whether a successor un-
ion was bound by the predecessor union’s past practice of acquiescing in
unilateral changes. The issue we address here is express waiver.
We recognize that Local 788’s contract with the Respondent has never
mentioned MEDCAP or DAP. Nevertheless, we find that, in the circum-
stances of this case, the prior contracts between the Respondent and Lo-
cal 788’s predecessors are probative evidence of waiver, especially be-
cause Local 788 continued to participate in DAP and MEDCAP without
ever seeking to renegotiate those plans. We also note that there was sub-
stantial carryover of union leadership going as far back as the first pre-
decessor Union; Local 788’s predecessors had acquiesced in the Re-
spondent’s pre-2013 changes to DAP and MEDCAP; and Local 788 ac-
quiesced in all of the Respondent’s changes to DAP and MEDCAP be-
tween 2010 (when it disaffiliated from its immediate predecessor, the
Steelworkers Union) and 2012.
E.I. DU PONT DE NEMOURS AND COMPANY 7
that article contains language recognizing the Respond-
ent’s right to act unilaterally with respect to the listed
plans. Regarding MEDCAP, the agreements between the
Respondent and both Local 593 and the predecessor to Lo-
cal 788 stated that unit employees’ participation in
MEDCAP was “subject to” the provisions of the
MEDCAP summary plan description. The pertinent
agreement between Local 992 and the Respondent broadly
granted the Respondent the right to “make available to em-
ployees alternate hospital medical-surgical coverage
plans,” and the parties’ bargaining history makes clear that
they intended this provision to grant the Respondent the
same right to make changes to MEDCAP that it made at
its other facilities and to do so unilaterally pursuant to the
reservation-of-rights provisions in the MEDCAP plan
document and summary plan description, which Local 992
accepted after prolonged bargaining specifically over
those provisions.17 See DuPont I, above.
Contractual references to MEDCAP and DAP were de-
leted following the Unions’ agreement to participate in
BeneFlex, but this merely reflected the parties’ agreement
that BeneFlex replaced DAP and MEDCAP for active

17 As discussed above, Local 992 agreed to have its members partic-
ipate in MEDCAP after lengthy bargaining over the MEDCAP reserva-
tion-of-rights language. Local 992 suggested that the parties refer to
MEDCAP in the IRP&P article of their collective-bargaining agreement,
where, Local 992 stated, “people recognize Management has a right to
change without Union agreement.” The Respondent, however, did not
want to refer to MEDCAP in the IRP&P article because of the 1-year
notice language in that article. Ultimately, the parties agreed to refer
implicitly to MEDCAP in the HMS article, as explained above and in
DuPont I. Viewed in light of the parties’ bargaining history, and consid-
ering also the past practice evidence discussed below, this contractual
evidence bolsters the conclusion that Local 992 clearly and unmistakably
waived its right to bargain over the 2013 changes to MEDCAP.
18 Citing Southern Nuclear Operating Co., 348 NLRB 1344 (2006),
enf. denied in relevant part 524 F.3d 1350 (D.C. Cir. 2008), Mississippi
Power Co., 332 NLRB 530 (2000), enf. denied in relevant part 284 F.3d
605 (5th Cir. 2002), and Amoco Chemical Co., 328 NLRB 1220 (1999),
enf. denied 217 F.3d 869 (D.C. Cir. 2000), the judge found that the con-
tractual references to the plans’ reservation-of-rights terms were insuffi-
cient to establish an express waiver. Contrary to the judge, these cases
are distinguishable.
First, none of these cases involved an “amalgam of factors” like those
present in this case. The holding in these cases that the contractual lan-
guage at issue there was insufficient, standing alone, to establish waiver
does not demonstrate that such language is not evidence of waiver. Evi-
dence need not be dispositive in order to be probative.
Second, the cases are also distinguishable on their facts. In Southern
Nuclear Operating Co., the collective-bargaining agreements did not
mention any specific benefits plan or intent to incorporate a plan into the
agreement. 348 NLRB at 1353–1354. That is not the case here. The
(pre-BeneFlex) collective-bargaining agreements at all three facilities re-
ferred to DAP, and they did so in the IRP&P article, where the Respond-
ent’s right to act unilaterally is expressly recognized. As for MEDCAP,
two Unions’ agreements expressly referred to MEDCAP and provided
that coverage under MEDCAP was subject to the terms and conditions
of the summary plan description, which contained a reservation-of-rights
employees. The deletion of these references did not have
any substantive effect on the DAP and MEDCAP plans
themselves. Neither did it change the fact that retirees and
their covered dependents continued to participate in these
plans, and their participation continued to be subject, as it
always had been, to the terms of the plan documents, in-
cluding the reservation-of-rights clauses. Further, after
the references to MEDCAP and DAP were deleted from
the collective-bargaining agreements with the Unions’ ac-
ceptance of BeneFlex, the Respondent continued to make
numerous unilateral changes to DAP and MEDCAP with-
out objection from the Unions. In these circumstances, we
find that the deletion of references to DAP and MEDCAP
from the parties’ collective-bargaining agreements when
BeneFlex was implemented does not deprive those refer-
ences of their probative force and value in determining
whether the Unions waived their right to bargain over the
changes at issue here. As the parties’ subsequent conduct
demonstrates, the deletion of those references had no ef-
fect on the parties’ understanding of their respective rights
and obligations.18 See DuPont I, above.
clause. The reference to MEDCAP in Local 992’s agreement was im-
plicit, but the evidence that Local 992 consciously waived its right to
bargain over changes to MEDCAP is compelling, as explained above.
In Mississippi Power, the Board found that retention-of-rights lan-
guage contained in the employer’s medical benefits plan did not consti-
tute waiver of the union’s right to bargain, where the union never ex-
pressly accepted that provision. Here, in contrast, all three Unions ex-
pressly accepted the Respondent’s reservation of the right to change
DAP unilaterally; Local 992 bargained over and expressly accepted the
reservation-of-rights clause in the MEDCAP plan; and MEDCAP was
accepted by Local 593 and Local 788’s predecessor subject to the terms
and conditions of the summary plan description, which contains a reser-
vation-of-rights clause.
In Amoco Chemical Co., the Board found that the reservation-of-
rights clause contained in the plan document did not constitute a waiver
of the unions’ right to bargain. The Board observed that the labor con-
tracts did not specifically incorporate the plan documents, only three of
the contracts even mentioned the plan documents, there was no evidence
that the parties ever bargained about the reservation-of-rights language,
and there was little evidence that the unions were even aware of the lan-
guage. Here, in contrast, the parties specifically agreed to include DAP
and MEDCAP in the contracts; they agreed to refer to DAP in the con-
tract article (IRP&P) that recognizes the Respondent’s right to act uni-
laterally; two Unions accepted MEDCAP subject to the terms and con-
ditions of the summary plan description (including the reservation-of-
rights clause); and Local 992 was clearly aware of, and specifically bar-
gained over, MEDCAP’s reservation-of-rights language.
Finally, we observe that none of the Board decisions cited above was
enforced by the court of appeals. In denying enforcement in Southern
Nuclear Operating Co. and Amoco Chemical Co., the United States
Court of Appeals for the District of Columbia Circuit held that when a
contract refers to a benefit plan, the plan document, including the reser-
vation-of-rights clause, is incorporated into the contract. See fn. 15, su-
pra. Again, while we would be willing to reconsider Board precedent
regarding incorporation by reference and contractual waivers of bargain-
ing in light of the court’s decisions in BP Amoco and Southern Nuclear
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We find that the language in the parties’ agreements dis-
cussed above supports a finding that the Unions waived
their right to bargain over the 2013 changes to MEDCAP
and DAP. As the Board recognized in Omaha World-Her-
ald, supra, contractual references to a benefit plan that
contains language reserving to the employer the right to
act unilaterally with respect to the plan can support a find-
ing of waiver even if the reference would be insufficient,
standing alone, to establish waiver under existing Board
precedent. In Omaha World-Herald, the Board found that
the following contract language supported a finding of
waiver: “The Company acknowledges that bargaining unit
employees are eligible to participate in the retirement plan,
group hospital, loss of time and life insurance programs
provided the requirements for participation are met.” The
Board reasoned as follows:
[The] pension plan is not described in the agreement and
thus the reference can only be understood by examining
the plan’s prior operation and the governing plan docu-
ments. . . . [T]he plan documents include reservation of
rights language, which expressly provides that the “Em-
ployer shall have the right at any time to amend the
Plan,” including “determin[ing] all questions relating to
the eligibility of Employees to participate or remain a
Participant hereunder and to receive benefits under the
Plan.”
357 NLRB at 1870-1871. The same reasoning applies here.
The parties’ collective-bargaining agreements identified
MEDCAP and DAP, but the terms of those plans can only be
understood by referring to the plan documents. Because
those plan documents contain language reserving to the Re-
spondent the right to amend or terminate either plan, the col-
lective-bargaining agreements’ references to MEDCAP and
DAP support a finding of waiver.19

Operating Co. in a future appropriate proceeding, our finding that the
Unions waived bargaining based on an amalgam of factors makes it un-
necessary for us to do so here.
19 In Omaha World-Herald, the Board also relied on contract lan-
guage excluding disputes over changes to the pension plan from the par-
ties’ contractual grievance arbitration procedure. The Board explained
that because the plans covered all employees, not just bargaining-unit
employees, the exclusion of such changes from grievance arbitration
supported a waiver finding because it suggested that the employer was
attempting to “preserve its authority to make uniform changes in the
plans as they applied to both represented and unrepresented employees.”
357 NLRB at 1871. Similar reasoning applies here even in the absence
of an express contract provision like the grievance arbitration provision
in Omaha World-Herald. As noted above, the parties stipulated that the
2013 changes to MEDCAP and DAP are not covered by the parties’ con-
tractual grievance arbitration procedures. Thus, the 2013 changes to
MEDCAP and DAP were not arbitrable, and the Respondent insisted on
the right to make unilateral changes to the plans to preserve its ability to
Bargaining History
An employer relying on bargaining history as evidence
of waiver must show that the parties fully discussed and
consciously explored the matter at issue, and that the un-
ion consciously yielded or clearly and unmistakably
waived its interest in the matter. See, e.g., American Dia-
mond Tool, 306 NLRB at 570; Johnson-Bateman Co., 295
NLRB 180, 185 (1989). Applying this standard, we find
that the history of each Union’s negotiations with the Re-
spondent over DAP and MEDCAP supports a finding of
waiver.
First, for the reasons fully explained in DuPont I, bar-
gaining history strongly supports a finding that Local 992
waived its right to bargain over DAP and MEDCAP. Lo-
cal 992 sought to bargain over DAP on a local basis, the
Respondent refused to do so,20 and Local 992 agreed to
accept DAP on the Respondent’s terms. Regarding
MEDCAP, the Union agreed to participate in that plan
with its reservation-of-rights language after having stren-
uously opposed that language during nearly a year’s worth
of bargaining. Local 992’s agreement to participate in
MEDCAP and DAP, including the reservation-of-rights
provisions in the plan documents and summary plan de-
scriptions, establishes that it “consciously yielded” its po-
sition and agreed that the Respondent had the right to act
unilaterally with respect to both MEDCAP and DAP. See
Southern Florida Hotel Assn., 245 NLRB 561, 567–568
& fn. 22 (1979) (finding that a union’s final acceptance of
amendments expanding a management-rights clause after
strenuously resisting the amendments established that the
union understood the breadth of its waiver), enfd. in part
751 F.2d 1571 (11th Cir. 1985).21
The Respondent’s bargaining history with the other Un-
ions involved in this case also supports a finding of
waiver. As explained above, the Respondent offered Lo-
cal 593 the opportunity to have the employees it represents
maintain their status as company-wide plans offered on a uniform basis
to represented and unrepresented employees alike.
20 The Respondent explained that “since [DAP] is a companywide
benefit, we cannot agree to change this specific plan. However, if [the
Union] wishes to substitute a different plan for this location, Manage-
ment will seriously consider their proposals.”
21 Contrary to the judge, Local 992’s bargaining history is evidence
of waiver even though the parties did not agree to include the reservation-
of-rights provision in their collective-bargaining agreement. (As a fac-
tual matter, the parties did effectively include DAP’s reservation-of-
rights provision in the CBA by adding DAP to the contract’s IRP&P ar-
ticle, where the Respondent’s right to make changes unilaterally is ex-
pressly recognized.) As stated above, the Respondent offered DAP and
MEDCAP to Local 992 subject to the condition that the Respondent re-
served the right to make changes as described in the plan documents, and
Local 992 agreed to participate in those plans on that basis after the par-
ties fully discussed the issue.
E.I. DU PONT DE NEMOURS AND COMPANY 9
at the Nashville facility participate in DAP on the same
basis as nonunion employees, subject to the terms of the
DAP plan document, which contained the reservation-of-
rights clause. Local 593 agreed, and the parties added
DAP to the IRP&P article of their collective-bargaining
agreement, where the Respondent’s right to act unilater-
ally is expressly recognized. The same process took place
with Local 788’s predecessor at the Louisville facility: the
Respondent offered Local 788’s predecessor the oppor-
tunity to participate in DAP subject to the terms of the
DAP plan document, Local 788’s predecessor agreed, the
parties’ collective-bargaining agreement noted that partic-
ipation in DAP was subject to the provisions of the plan,
and DAP was added to the IRP&P article of the parties’
agreement.22 Regarding MEDCAP, Local 593 agreed to
participate in MEDCAP, and MEDCAP was added to the
HMS article of the parties’ collective-bargaining agree-
ment, which stated that MEDCAP coverage was provided
“as set forth in the terms and conditions of the Summary
Plan Description,” which included the reservation-of-
rights clause. A similar agreement was reached with Lo-
cal 788’s predecessor, and MEDCAP was similarly added
to the HMS provision of the parties’ agreement, subject to
“the terms and provisions of the Summary Plan Descrip-
tion (SPD),” with its reservation-of-rights language.
In sum, the parties’ bargaining history makes clear that
the Unions, in accepting DAP and MEDCAP, fully and
consciously agreed to accept these plans subject to plan
documents that included reservation-of-rights clauses re-
serving to the Respondent the right to change the terms of
the plans or to terminate the plans altogether and to do so

22 The judge found that the history of bargaining between Local 788’s
predecessors and the Respondent could not support a finding of waiver
as to Local 788. We disagree. Even though Local 788 did not itself
bargain with the Respondent over DAP and MEDCAP when the Re-
spondent introduced those plans (Local 788 did not then exist), its pre-
decessor did so; Local 788 voluntarily bound itself to its predecessor’s
contract; there was substantial carryover of union leadership going as far
back as the first predecessor Union; the unit employees represented by
Local 788 continued to receive benefits under DAP and MEDCAP; and
Local 788 never sought to renegotiate the terms of its participation in
either benefit plan. Moreover, we are unaware of any precedent holding
that a union, in such circumstances, could not be bound by the bargaining
history of one of its predecessors. In these circumstances, we find that
Local 788’s predecessor’s bargaining history supports our finding that
Local 788 waived bargaining over the changes at issue here.
In finding that Locals 593 and 788 did not waive bargaining, the judge
also relied on the fact that the record does not include relevant bargaining
notes. We reject this finding because the record as a whole sufficiently
describes the negotiations between the parties.
23 Cases cited by the judge to support his contrary finding are distin-
guishable. They involve either ambiguous evidence of bargaining his-
tory and the effect of a contractual zipper clause (General Electric Co.,
296 NLRB 844 (1989), enfd. 915 F.2d 738 (D.C. Cir. 1990)), inapposite
facts regarding production of requested information during collective
bargaining (Davies Medical Center, 303 NLRB 195 (1991) (union’s past
unilaterally. Accordingly, we find that bargaining history
also supports a finding of waiver.23
Past Practice
We recognize that “[a] union’s acquiescence in previous
unilateral changes,” standing alone, “does not operate as a
waiver of its right to bargain over such changes for all
time.” Owens-Corning Fiberglas, 282 NLRB 609, 609
(1987). Nonetheless, the Board has held that “[a] clear
and unmistakable waiver may be inferred from past prac-
tice,” California Pacific Medical Center, 337 NLRB 910,
914 (2002) (emphasis added), and even a single prior fail-
ure to object to a unilateral change can serve as a corrob-
orating factor in a waiver analysis, see Omaha World-Her-
ald, supra, 357 NLRB at 1872. We find these principles
are applicable here.24
As discussed above, the record shows that, for decades,
the Respondent implemented numerous changes to
MEDCAP and DAP,25 the Respondent made these
changes unilaterally, and the Unions did not object to the
Respondent’s unilateral actions. The parties stipulated
that the Respondent did not seek the Union’s agreement
before making changes to DAP and MEDCAP, and wit-
nesses testified that the Respondent never bargained about
these matters. The Unions’ acquiescence in the unilateral
changes is evidenced by their failure to file a grievance,
an unfair labor practice charge or other protest over any of
these changes from 1976 until, at the earliest, 2007 (when
Local 992 filed what appears to have been its only charge).
The multitude of prior, uncontested unilateral changes to
MEDCAP and DAP strongly corroborate our finding of
waiver. Omaha World-Herald, 357 NLRB at 1872
practice of not requiring production of requested information until first
bargaining session not a waiver of its right to request production prior to
the first session), enfd. 991 F.2d 803 (9th Cir. 1993)), or unilateral action
outside the scope of the union’s bargaining waiver (Reece Corp., 294
NLRB 448 (1989) (union’s failure to protest transfer of certain work,
consistent with its agreement granting employer right to transfer that
work, not a waiver of its right to bargain over transfers of other work).
Here, in contrast, the evidence of bargaining history is clear, establishing
that the Respondent, at each facility, conditioned its offer to permit the
unit employees to participate in DAP and MEDCAP on the Unions’ ac-
ceptance of the terms of those plans, which included a reservation of the
Respondent’s right to modify or terminate each plan, and the Unions (or,
in Local 788’s case, its predecessor) agreed to accept DAP and
MEDCAP on those terms, i.e., subject to plan documents that included a
waiver of the right to bargain over changes to, or termination of, those
benefit plans. And unlike in Reece Corp., the challenged 2013 unilateral
action was clearly within the scope of the Unions’ waiver of their right
to bargain over changes to DAP and MEDCAP.
24 With respect to Local 788, we rely solely on its acquiescence to
unilateral changes to MEDCAP and DAP after it became the bargaining
representative of the unit employees in 2010. We find this past practice,
in combination with the other factors cited above, sufficient to establish
waiver.
25 From 1987 to 2013, the Respondent made over 50 changes to DAP
and MEDCAP.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(union’s failure to protest employer’s unilateral removal
of employees under 50 years old from its pension plan
supported a finding that union waived its right to bargain
over employer’s unilateral freezing of benefit accruals 4
years later).26
The judge found that although the Unions had acqui-
esced in most of the prior changes to MEDCAP and DAP,
the parties had bargained about a few of those changes,
and these “fluctuations” preclude a finding of waiver. We
need not decide whether the judge’s legal premise was
correct—i.e., that a few “fluctuations” in an overall pattern
of acquiescence would preclude a waiver finding—be-
cause he is wrong on the facts. There were no “fluctua-
tions.”
First, the judge erred in finding that the Respondent and
Local 992 bargained over two “major . . . proposals to
change healthcare coverage from 1985 to 1987.” The ex-
hibits cited by the judge in support of this finding show
that the bargaining he referred to involved whether Local
992 should participate in the local Blue Cross-Blue Shield
Plan instead of MEDCAP. It did not involve bargaining
over changes to MEDCAP. Indeed, the record shows that
when the Respondent announced changes to company-
wide benefit plans, it would answer questions from Local
992, but it did not bargain with Local 992.
Second, the judge also erred in finding that Local 788
requested bargaining over changes to DAP and MEDCAP.
Again, the meeting notes cited by the judge in support of
his finding concern a different matter: Local 788’s pro-
posal to have its members participate in a different
healthcare plan.27
Finally, the judge erred in finding that the Respondent
bargained with Local 593 over changes to DAP and
MEDCAP based on bargaining notes from 1984 regarding
a proposed increase in premiums and changes to enroll-
ment and claims forms. To the contrary, these bargaining
notes indicate only that the Respondent explained why
premiums increased and notified the union that employees
needed to fill out enrollment forms by a certain date (and
that more forms would be available). Nothing about the

26 Contrary to the judge, neither Mt. Clemens General Hospital, 344
NLRB 450 (2005), nor California Pacific Medical Center, 337 NLRB at
910, supports a finding that the Union’s past practice does not evidence
waiver. To the contrary, in California Pacific Medical Center, the Board
adopted the judge’s decision finding that the union’s acquiescence in nu-
merous prior layoffs supported a finding that it had waived its right to
bargain over layoffs. And in Mt. Clemens, the judge similarly found that
the union waived bargaining, based, in part, on the union’s prior acqui-
escence in the employer’s unilateral changes. 344 NLRB at 459–460. In
any event, Mt. Clemens General Hospital is not precedential on the issue
of waiver because there were no exceptions to the judge’s waiver finding.
See 344 NLRB at 450 fn. 2.
27 The meeting notes also memorialize a proposal put forward by the
Respondent to have employees participate in a long-term insurance plan.
Respondent’s conduct can reasonably be characterized as
bargaining, let alone bargaining that would undercut its
reservation of the right to unilaterally change company-
wide benefits.28
At times, the Unions did request information about
changes to DAP or MEDCAP, and the Respondent gener-
ally provided the information. However, the Unions’ in-
formation requests were not requests to bargain, and the
Respondent’s willingness to furnish information about
MEDCAP or DAP changes is not evidence that the Re-
spondent bargained about the changes themselves. Cases
in which the Board has found that an information request
was tantamount to a bargaining request, involved employ-
ers that had refused to recognize the union making the in-
formation request. See, e.g., Eldorado, Inc., 335 NLRB
952, 954 (2001). Here, in contrast, the Respondent has not
refused to recognize any of the Unions. Further, after the
Respondent provided the Unions with the requested infor-
mation, it proceeded to implement the changes unilater-
ally. Thus, the Respondent’s willingness to provide the
Unions with information regarding changes to DAP and
MEDCAP does not support a finding that the Respondent
bargained with the Unions over those changes.
Response to Dissent
Our dissenting colleague acknowledges that this case is
closely related to DuPont I, where the Board found that a
waiver had been established as to the 2006 changes to
MEDCAP and DAP, and she concedes that the same anal-
ysis is applicable here. Relying on her dissenting view in
DuPont I, our colleague finds that no waivers have been
shown on the facts presented here as well. Specifically,
the dissent finds the contractual evidence wanting because
the parties deleted references to MEDCAP and DAP from
their agreements following the Unions’ agreement to par-
ticipate in BeneFlex; the current agreements do not refer
to DAP and MEDCAP; and for Locals 992 and 788, cer-
tain contractual language, she contends, precludes any re-
liance on prior agreements or other “extra contractual doc-
uments.” Further, the dissent finds the bargaining history
28 Bargaining notes from 1993, cited by the judge, are also unavailing.
That year, the Respondent announced to Local 593 that healthcare pre-
miums would be split 80/20, but this did not demonstrate that the Re-
spondent “recognized its bargaining obligation regarding the proportion-
ate share of plan costs to be borne by the [Respondent] and employees,”
as the judge mistakenly found. To the contrary, this was simply an an-
nouncement of a change, not an invitation to bargain over the change.
The judge also stated that the Respondent and Local 593 bargained over
the elimination of “Prucare, a local health plan.” This is irrelevant: the
fact that the parties bargained regarding a local health plan does not sup-
port a finding that the Respondent bargained over changes to DAP or
MEDCAP.
E.I. DU PONT DE NEMOURS AND COMPANY 11
and past practice evidence wanting, both on its own terms
and because some of that evidence predates the deletion of
MEDCAP and DAP from the parties’ agreements. In
short, the dissent denies that the facts relating to each Un-
ion, even taken as a whole, are substantial evidence of
“clear and unmistakable” waiver with respect to any of the
Unions. We respectfully disagree, for the reasons stated
above and in DuPont I and those set forth below.
As in DuPont I, our dissenting colleague fails to grapple
with the reality that MEDCAP and DAP, as corporate-
wide plans, were offered to the Unions at each of the three
facilities subject to the Respondent’s reservation of the
right to alter or terminate the plans, and that the Unions
accepted them on that basis. As we explained in DuPont
I, this was necessarily so: if the Respondent provided dif-
ferent benefits under MEDCAP and DAP at the three fa-
cilities than elsewhere, MEDCAP and DAP would cease
to be company-wide plans. Nothing in the parties’ deal-
ings remotely suggests that they ever agreed to alter the
status of those plans as company-wide plans. Yet, when
the Respondent made the company-wide changes to
MEDCAP and DAP at issue here, the dissent insists that it
could not lawfully implement those changes in the Rich-
mond, Nashville and Louisville units without first bar-
gaining with the Unions to agreement or impasse. Re-
spectfully, it is the dissent, not we, whose position is un-
supported by substantial evidence.
The dissent omits any mention of the Respondent’s
clearly stated position that while MEDCAP and DAP were
offered solely as company-wide plans, the Respondent
stood ready to negotiate separate benefit plans for its rep-
resented employees if the Unions so desired. We therefore
reject the dissent’s claim that the Respondent has “under-
mined the Unions’ effectiveness as a bargaining repre-
sentative by removing a mandatory subject of bargain-
ing—future retirement health benefits—from the bargain-
ing table.” There is no basis for the dissent’s implication
that the Respondent would refuse to discuss site-specific
plans should the Unions propose them. If anything, the
Respondent’s prior expressions of willingness to negotiate

29 Tesoro Refining & Marketing Co., 360 NLRB 293 (2014), a case
cited by the dissent, is plainly distinguishable. There, the employer
sought to rely on reservation-of-rights language in a benefit plan’s sum-
mary plan description as grounds for unilateral changes to the plan, de-
spite the following language incorporated into the parties’ collective-bar-
gaining agreement: “Should future circumstance require substantial ben-
efits plans modifications, the Company agrees to notify the Union and
engage in appropriate discussion/bargaining. Should the parties be una-
ble to reach agreement after such bargaining, the Company reserves the
right to implement changes which have been subject to negotiation and
which are generally effective in the Company.” Id. at 293. The Board
found that this language—which limited the employer’s ability to make
changes pursuant to the plan’s reservation-of-rights clause—referred to
and reinforced the employer’s bargaining obligation. Id. at 294. The
separate plans strongly suggest that the Respondent would
agree to do so.
Second, we cannot agree with our colleague’s assertion
that the deletion of MEDCAP and DAP from the Respond-
ent’s agreements with each of the three Unions had the
decisive significance she ascribes to it. As described in
the facts, the parties at each of the three facilities agreed
to delete references to DAP and MEDCAP from their
agreements when BeneFlex took the place of these plans
for active employees. It is undisputed, however, that the
Respondent, at each of the three facilities, continued to of-
fer MEDCAP and DAP benefits for retirees after the
switch to BeneFlex for active employees.29 The dissent’s
position is that the obligation to provide those benefits
continued, while the right to make unilateral changes to
the plans did not. There is no valid basis for ascribing such
dispositive significance to a technical change in the con-
tract language when, as explained above, the parties
clearly did not intend it to have that effect.
Nor is there any merit to the dissent’s claim that, with
respect to the Richmond and Louisville facilities, Article
II, Section 3 of the parties’ agreements requires a different
result. That provision, which the dissent terms an “inte-
gration clause,” generally provides that “[the] Agreement
constitutes the entire agreement between the parties hereto
as of the execution date hereof.” Our colleague contends
that these provisions preclude “the majority’s effort to find
a waiver by reading prior agreements and other extra-con-
tractual documents into the agreement that actually was in
effect when the unilateral change was made.”
Initially, we observe that no party has advanced this ar-
gument, nor was it considered by the judge. There is thus
no assurance that the parties to the agreement would agree
with the interpretation of the integration clause that our
colleague advances. Even assuming that the dissent’s ar-
gument is properly before us, we find it without merit. We
have neither altered the parties’ CBAs nor reinserted the
MEDCAP and DAP reservation-of-rights clauses into
them. Instead, we have found that the Unions’ acceptance
of these provisions, when they agreed that MEDCAP and
parties in this case have never agreed to any provision, in their collective-
bargaining agreement or otherwise, that similarly limits the Respond-
ent’s right to make unilateral changes to MEDCAP and DAP.
Caterpillar, Inc., 355 NLRB 521, 522 (2010), enfd. mem. per curiam
2011 WL 2555757 (D.C. Cir. May 31, 2011), cited by the dissent, is also
inapposite. There, the Board considered evidence of an employer’s past
practice of making unilateral changes to a prescription drug program for
the purpose of determining whether the employer had unilaterally
changed a term or condition of employment by implementing a “generic
first” requirement or, instead, had maintained the status quo. Here, we
consider only whether the past practice of unilateral changes to
MEDCAP and DAP support a finding of waiver. For the reasons de-
scribed above, we find that it does.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DAP would apply to unit employees, supports a finding of
waiver under all the circumstances of this case. That find-
ing, in turn, reflects the realities of the parties’ dealings
with one another regarding these plans over the course of
43 years. Our colleague’s effort to confine the analysis to
the events and circumstances present in 2013, in contrast,
does not.30
CONCLUSION
Here, as in DuPont I, we find that the parties’ agree-
ments, bargaining history, and past practice, taken to-
gether, make clear that the Respondent offered, and the
Unions accepted, MEDCAP and DAP as company-wide
benefit plans in which unit employees would participate
on the same terms as all of the Respondent’s other em-
ployees, subject to the Respondent’s reservation of the
right to make changes to or terminate the plans on a com-
pany-wide basis. Under the reservation-of-rights provi-
sions in those plans, the Respondent had the right to
amend or discontinue DAP and MEDCAP unilaterally.
The Respondent exercised that right in 2013 as it had
many times before by making changes to DAP and
MEDCAP. For the reasons explained above, the Re-
spondent was not obligated to bargain with the Unions
prior to making these changes because the Unions had
clearly and unmistakably waived their right to bargain
over the changes. Accordingly, we shall dismiss the com-
plaint.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 4, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting

30 The policy of encouraging the practice and procedure of collective
bargaining referenced in Sec. 1 of the Act provides no support for the
dissent’s position in these circumstances. The parties bargained over the
subject of health benefits for active employees and retirees, and they
agreed that those benefits would be provided under company-wide plans,
subject to the Respondent’s reservation of the right to modify or termi-
nate the plans. In our view, it is fully consistent with the policies of the
Act to find waiver under these circumstances.
This case is closely related to E.I. DuPont de Nemours
& Co., 367 NLRB No. 145 (2019) (DuPont I) (Member
McFerran, dissenting), in which the Respondent elim-
inated future dental and healthcare retirement benefits
known as DAP and MEDCAP for all incoming employees
in 2007 without bargaining with Local 992 at the Re-
spondent’s Spruance facility in Richmond, Virginia.1 In
that case, a majority of the Board found, over my dissent,
that the employees’ union, Ampthill Rayon Workers, Inc.,
Local 992, International Brotherhood of Dupont Workers
(Local 992) had clearly and unmistakably waived its right
to bargain over the elimination of those benefits—a man-
datory subject of bargaining under the National Labor Re-
lations Act.
The present case concerns the Respondent’s further dis-
mantling of active employees’ future dental and
healthcare retirement benefits. In 2013, the Respondent
unilaterally eliminated future DAP and MEDCAP retire-
ment benefits for all active employees upon becoming
Medicare-eligible, including employees working at the
Respondent’s Richmond facility as well as employees
working at the Respondent’s Louisville, Kentucky, and
Nashville, Tennessee facilities. In place of DAP and
MEDCAP, the Respondent implemented a completely dif-
ferent system of providing such benefits to future retirees;
essentially, for each employee, upon becoming eligible for
Medicare, the Respondent would deposit into a Health Re-
imbursement Agreement (HRA) account $200 for dental
benefits and $1200 for medical benefits, which the em-
ployee would then use to enroll in one of 75 participating
insurance plans. In effect, the Respondent unilaterally ex-
tricated itself from the business of providing and adminis-
tering employees’ future dental and medical benefits and
transferred those responsibilities to the employees them-
selves and third-party providers.
The Unions representing the Respondent’s employees
at its facilities in Richmond (again, Local 992), Louisville
(Local 788), and Nashville (Local 593) objected to those
unilateral changes. The Respondent, however, refused the
Unions’ demands to rescind the changes, claiming that the
reservation-of-rights clauses in the applicable benefit plan
documents authorized it to make the changes. The Unions
then filed the unfair labor practice charges underlying this
case. The majority, as it did in Dupont I, dismisses the
complaint, finding that the Unions waived their right to
1 Local 992, one of the Charging Party unions representing employees
at the Richmond (Spruance) facility in this case, filed charges against the
Respondent for failing to bargain on the 2006 change. The Board found,
contrary to the judge, that Local 992 had waived its right to bargain over
what indisputably concerned a mandatory subject of bargaining under
the National Labor Relations Act. E.I. DuPont de Nemours and Com-
pany, 367 NLRB No. 145 (2019) (DuPont I) (Member McFerran, dis-
senting).
E.I. DU PONT DE NEMOURS AND COMPANY 13
bargain over the 2013 changes. As in DuPont I, I disa-
gree—finding waiver in this case is a misapplication and
erosion of the “clear and unmistakable” waiver standard.
I.
As this case so closely resembles DuPont I, the same
analytic framework set forth in my dissenting opinion in
DuPont I necessarily applies. Under that framework, it is
clear to me that the Respondent has not established that
any of the Unions clearly and unmistakably waived its
right to bargain over the Respondent’s 2013 elimination
of DAP and MEDCAP for all Medicare-eligible future re-
tirees. As I explain in more detail below, the majority mis-
takenly relies on so-called “reservation-of-rights” clauses
contained in the relevant benefit plan documents, despite
the fact there was no reference at all to the plans (much
less the plan documents) in the applicable collective-bar-
gaining agreements. The absence of contractual evidence
of waiver, moreover, cannot be compensated for by the
evidence related to bargaining history or past practice,
which does not show—at least with the required cer-
tainty—that the Unions gave up their right to bargain over
the Respondent’s dramatic restructuring of its longstand-
ing approach to providing dental and medical benefits to
future retirees.
Below, I briefly set forth the relevant background facts,
many of which are the same for all three Unions. Then,
for each of the three Unions, I explain why, for many of
the same reasons given in my dissent in Dupont I, the Re-
spondent has not carried its heavy burden to demonstrate
a “clear and unmistakable waiver.”
II.
The Respondent began offering DAP in 1976 and Lo-
cals 992 (Richmond) and 593 (Nashville) agreed to incor-
porate DAP into their respective collective-bargaining
agreements at that time. Local 788 (Louisville) was not
the Louisville employees’ representative at the time, but
one of its predecessors had also agreed to incorporate DAP
into the agreement covering those employees. Similarly,
the Respondent began offering MEDCAP beginning in
1983 and the parties began extending that benefit as well

2 The parties stipulated that at the Richmond facility MEDCAP has
never been expressly referenced in any collective-bargaining agreement.
3 As did DAP and MEDCAP, the BeneFlex plan document contained
its own reservation-of-rights clause.
4 As described, in Dupont I, a majority of the Board found that in
2006 the Respondent lawfully eliminated future DAP and MEDCAP
benefits for employees hired on or after January 1, 2007.
5 The HRA funds were to be used to obtain “secondary coverage”
once the employees became eligible for Medicare.
6 Not surprisingly, the Respondent’s wholesale change in its overall
approach to providing secondary dental and medical benefits to Medi-
care-eligible retirees meant there would be significant on-the-ground
to employees, although by varying means. Again, though,
Local 788 was not on the scene yet.2
In 1993, or at some point thereafter, after the Respond-
ent introduced a new corporate-wide dental and medical
plan called BeneFlex to cover employees while they re-
mained actively employed,3 the parties removed all refer-
ences to DAP and MEDCAP from their collective-bar-
gaining agreements. But DAP and MEDCAP remained in
place to provide the employees’ future dental and
healthcare benefits in retirement.
As described in DuPont I, the ongoing availability of
DAP and MEDCAP did not mean that those benefits con-
tinued unchanged. Every year the Respondent changed
aspects of both DAP and MEDCAP, such as premiums,
scope of coverage, and related features of the plans, all
without challenge by the Unions. Yet, both DAP and
MEDCAP remained in place for future retirees, at least for
employees hired before January 1, 2007.4
On August 15, 2012, the Respondent announced to the
Unions and employees that, effective January 1, 2013, the
Respondent would eliminate DAP and MEDCAP retire-
ment benefits for all future retirees when they became el-
igible for Medicare and replace those benefit plans with a
completely new system for providing retiree dental and
medical benefits. In sum, the Respondent would deposit
$200 for dental benefits and $1200 for medical benefits
for each employee (and each of her covered dependents)
into an HRA account.5 The employee would then use
those funds to enroll in one of the plans offered by 75 in-
surance carriers on the open market using a third-party
broker.6
Upon learning of the Respondent’s announced changes,
the Unions demanded their rescission, but the Respondent
refused.
III.
As indicated above, the Respondent has defended its
unilateral action on the theory that the Unions waived their
respective rights to bargain over the wholesale elimination
of future DAP and MEDCAP retirement benefits and the
restructuring of secondary insurance for all future retirees
once they became eligible for Medicare. Specifically, the
changes for each employee in the future. Under the new approach, for
example, the claims procedure differed by requiring more information to
be submitted and claims and appeals were to be decided by the third-
party administrator instead of the Respondent. The time limit for submit-
ting claims, formerly 2 years, ended on March 31 following the plan year
of the service. Other changes included the removal of a stop-loss provi-
sion that previously entitled an employee to up to $1.5 million per year
toward covered medical expenses after annual benefit maximums had
been reached, the potential denial of coverage for pre-existing conditions
after the first year, and the possibility that employees would not be able
to keep their current dental or medical providers once they became eligi-
ble for Medicare.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent has relied on the “reservation-of-rights”
clauses contained in the DAP and MEDCAP plan docu-
ments. The Respondent acknowledges that those clauses
do not appear in the applicable collective-bargaining
agreements, but it asserts that the Unions’ waivers never-
theless may be found in their initial agreements to partici-
pate in DAP and MEDCAP, the parties’ past bargaining
histories, and in each Union’s acquiescence in the Re-
spondent’s various changes to DAP and MEDCAP over
the years. The majority finds that this “amalgam” of cir-
cumstances establishes waiver, but for the same reasons
explained in my dissenting opinion in DuPont I, they are
mistaken.
A.
There is no dispute about the applicable legal princi-
ples—only about their application and whether the major-
ity’s conclusion is supported by substantial evidence. In
DuPont I, I explained how the central policy of the Act is
“to encourag[e] the practice and procedure of collective
bargaining,” 29 U.S.C. Section 151, and, to that end, that
an employer may not unilaterally make changes to man-
datory subjects of bargaining, which include the provision
of active employees’ future retirement benefits, without a
valid defense. Chemical Workers v. Pittsburgh Plate
Glass Co., 404 U.S. 157, 180 (1971); NLRB v. Katz, 369
U.S. 736, 743 (1962). I also emphasized previously well
settled precedent holding that where, as here, an employer
has asserted a waiver defense, the employer has a heavy
burden to demonstrate that the union has “clearly and un-
mistakably” waived its statutory bargaining rights, and
that such a waiver will not be lightly inferred. See
Provena St. Joseph Medical Center, 350 NLRB 808, 811
(2007).7 Evidence of waiver may arise from an express
provision in a collective-bargaining agreement, the con-
duct of the parties (including bargaining history and past

7 Ozanne Construction Co., 317 NLRB 396, 398 (1995) (waiver of
statutory right must be “clearly and unmistakably established and is not
lightly to be inferred”), enfd. 112 F.3d 219 (6th Cir. 1997); Universal
Security Instruments, Inc., 250 NLRB 661, 662 (1980) (same), enfd. in
part denied in part, 649 F.2d 247, 256 (4th Cir. 1981).
8 The Omaha World-Herald Board emphasized that the applicable
collective-bargaining agreement referenced the pension plan documents
and a “reservation-of-rights clause” contained therein; that the agreement
expressly excluded pension plan changes from the contractual grievance
and arbitration procedure, with an indication that the employer’s objec-
tive was to preserve its ability to make uniform changes for all repre-
sented and unrepresented employees; that the agreement required the em-
ployer only to “discuss and explain” changes to the pension plan, signal-
ing that “bargaining” was not contemplated; and that during the term of
the agreement the union had not objected to the employer making similar
changes to the pension plan. 357 NLRB at 1871–1872. In those circum-
stances, the Board found a waiver, but emphasized that it had “neither
diluted nor abandoned the clear and unmistakable waiver standard.” Id.
at 1872.
practice), or by a combination of these factors, in short,
“all the surrounding circumstances including . . . the com-
pleteness of the collective-bargaining agreement.”
Omaha World-Herald, 357 NLRB 1870, 1871–1872
(2011) (citation omitted). Applying the same analysis as
in my dissenting opinion in DuPont I to the facts surround-
ing the Respondent’s 2013 change, the variations of which
are explained below as to each Union, I cannot agree with
the majority’s conclusion, relying on Omaha World-Her-
ald,8 that an “amalgam” of factors supports a finding of
waiver.
B. Local 992 (Richmond)
The reasons I would find that Local 992 has not waived
its right to bargain over the 2013 changes are the same as
in my dissenting opinion in DuPont I, which I incorporate
by reference and briefly summarize here: (1) the relevant
collective-bargaining agreements have not referred to the
benefit plans involved here since 1993; (2) the applicable
agreements have always contained an integration clause;9
and (3) the benefits at issue were unilaterally changed
many times, but never on a scale comparable to eliminat-
ing employer-provided secondary insurance and restruc-
turing it as a voucher system administered by a third party.
I explained in DuPont I that there is no support for a
waiver in the applicable collective-bargaining agreement.
The Respondent and Local 992 stipulated that the agree-
ment did not address or even reference active employees’
future dental and healthcare benefits. The language in-
cluded in, or omitted from, a collective-bargaining agree-
ment (or any other contract) obviously matters, and the de-
letion of references to DAP and MEDCAP in the applica-
ble agreement stands in stark contrast to the express refer-
ence to BeneFlex, which demonstrates that the parties un-
derstood both how to incorporate a benefit plan into the
agreement—and the significance of doing so.10
9 The collective-bargaining agreement between the Respondent and
Local 992 that was in effect in 2013 contained the following integration
clause: “This Agreement constitutes the entire Agreement between the
parties hereto as of the execution date hereof. However, any supplement
which may hereafter be mutually agreed upon between the parties, when
executed in the same manner as this Agreement, shall become and be
part of this Agreement.”
10 See DuPont I, slip op. at 13–14 & fn. 12 (citing Tesoro Refining &
Marketing Co., 360 NLRB 293, 294 (2014)). The majority’s attempt to
distinguish Tesoro merely reinforces the principle that reservation-of-
rights language not incorporated in the agreement cannot authorize uni-
lateral changes. See below, fn. 11. In Tesoro, even though the collective-
bargaining agreement incorporated the reservation-of-rights clause from
the plan documents, a side letter limited the employer’s right to rely on
that clause by requiring “appropriate discussion/bargaining” before any
changes could be implemented. While the majority states that the parties
in this case have never agreed to any contractual provision similarly lim-
iting the Respondent’s right to make unilateral changes to MEDCAP and
DAP, they overlook the fact that in Tesoro, both the reservation-of-rights
clause and the limitation on that authority were incorporated in the
E.I. DU PONT DE NEMOURS AND COMPANY 15
Accordingly, as Board precedent illustrates, the parties’
deletion of DAP and MEDCAP from their agreement de-
prives the reservation-of-rights provisions attached to
those plans of their probative force and value, and the Re-
spondent could no longer rely on the “reservation-of-
rights” clauses contained in the relevant plan documents.11
I also explained how my colleagues’ reliance primarily on
the “amalgam” approach discussed in Omaha World-Her-
ald, above, ignores the fact that every “contractual” ele-
ment supporting waiver in that case was found in the col-
lective-bargaining agreement in effect at the time the em-
ployer changed the pension plan, not in past or deleted
contract provisions, such as those my colleagues rely on
here. See DuPont I, slip op. at 13–15 (citing cases). Sim-
ilarly, I addressed my colleagues’ misinterpretation of the
Omaha World Herald Board’s reliance on the nonarbitra-
bility of the plan at issue, which, again, was grounded in
the language of the applicable agreement. DuPont I, slip
op. at 14 & fn. 14.
Further, as explained in DuPont I, the integration clause
absolutely negates the majority’s effort to find a waiver by
reading prior agreements and other extra-contractual doc-
uments into the agreement that actually was in effect when
the unilateral change was made. The Respondent has not
identified any other provision of the applicable collective-
bargaining agreement that authorized it to unilaterally ter-
minate the benefits. In sum, viewed in light of Board prec-
edent, the collective-bargaining agreement here provides
no substantial evidence supporting the majority’s waiver
finding.
The parties’ relevant bargaining history provides no
more support for the majority’s waiver finding. As I ex-
plained in DuPont I, the majority wrongly relies on the
parties’ negotiations that culminated in Local 992’s ac-
ceptance of DAP in 1976 and MEDCAP in 1986. The

collective-bargaining agreement, unlike in these cases. Thus, consistent
with well-established Board precedent, deleted contractual language
matters. See below, fn. 11, and DuPont I, slip op. at 14 fn. 12. And the
majority’s argument that because DAP and MEDCAP continued to be
offered despite the deletion of references to them in the contract does not
prove anything other than that the Union had no occasion before 2006 to
object to an unprecedented unilateral change.
My colleagues also suggest that the deletion of contractual references
to DAP and MEDCAP was of no moment because this merely reflected
the parties’ agreement that BeneFlex replaced those benefit plans. As
my colleagues acknowledge, however, this supposed “replacement,”
even assuming it was one, pertained only to the dental and healthcare
benefits of active employees while they were actively working. The pre-
sent case concerns only the future dental and healthcare benefits when
the employees would retire and become Medicare-eligible. BeneFlex
never covered those future benefits, which were always provided through
DAP and MEDCAP. As a result, there is no merit to my colleagues’
apparent suggestion that the “reservation-of-rights” clause attached to
BeneFlex somehow preserved a contractual reference to those clauses
attached to DAP and MEDCAP.
parties agreed to delete all contractual references to DAP
and MEDCAP in 1993, some 20 years before the Re-
spondent made the unilateral changes at issue here. The
history behind those discarded provisions therefore is ir-
relevant and sheds no light on whether Local 992 waived
its right to bargain in the agreement in effect at the opera-
tive time. Indeed, to the extent that the bargaining history
of deleted provisions did support a waiver finding, it
would seem only to confirm that the deletion of the provi-
sions was a reassertion of Local 992’s statutory right to
bargain. At the very least it is clear that, under well-estab-
lished Board law, any waiver reflected in the deleted pro-
visions expired with the last agreements referencing DAP
and MEDCAP. And, of course, the parties’ subsequent
agreements never renewed or reincorporated either benefit
plan, certainly not with respect to active employees’ future
retirement benefits. As a result, the parties’ bargaining
history cannot possibly provide substantial evidence sup-
porting a finding of clear and unmistakable waiver.
Last, urged on by the Respondent, my colleagues mis-
takenly rely on the parties’ past practice,12] which for two
independently sufficient reasons, does not support finding
a waiver with respect to the Respondent’s decision to dis-
continue DAP and MEDCAP for future Medicare-eligible
retirees, and to replace them with an entirely different sys-
tem of benefits. It is undisputed that the Respondent made
many unilateral changes to DAP and MEDCAP in the
years preceding the changes at issue in this case, without
objection by Local 992, except when it filed the unfair la-
bor practice charge relating to the 2006 change, resolved
by DuPont I.
My colleagues admittedly recognize the well-settled
principle that “a union’s acquiescence in previous unilat-
eral changes does not operate as a waiver of its right to
bargain over such changes for all time.”13 But they fail to
11 See Mary Thompson Hospital, 296 NLRB 1245, 1249 (1989), enfd.
943 F.2d 741 (7th Cir. 1991); Amoco Chemical Co., 328 NLRB 1220
(1999), enf. denied sub nom. BP Amoco Corp. v. NLRB, 217 F.3d 869
(D.C. Cir. 2000). See also Holiday Inn of Victorville, 284 NLRB 916,
917 (1987) (waiver is limited to the time during which the contract that
contains it is in effect). See also DuPont I, slip op. at 13 & fn.10 (even
the more lenient standard of “incorporation by reference” and “contract
coverage” applied by the District of Columbia Circuit, would not be sat-
isfied where there is no reference at all to the benefit plans in the collec-
tive-bargaining agreement.)
12 Although I agree with the judge’s conclusion that that the parties’
past practice does not support a finding of waiver, I rely only on the rea-
sons discussed below. Thus, I do not rely on the judge’s estoppel analy-
sis or any of his characterizations of the Respondent’s history of unilat-
eral changes to DAP and MEDCAP.
13 Caterpillar, Inc., 355 NLRB 521, 522 (2010), enfd. per curiam,
2011 WL 2555757 (D.C. Cir. May 31, 2011) (unpublished decision); see
also Olean General Hospital, 363 NLRB No. 62, slip op. at 3–4 (2015).
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
acknowledge that there must be a “thread of similarity run-
ning through and linking” past changes for there to be a
cognizable past practice justifying the present change.14
Here, although the Respondent made changes to the pre-
miums, scope of coverage, and benefits under DAP and
MEDCAP, it has not established that those changes were
all similar in scope and magnitude, and thus established a
pattern. In any event, the prior changes were certainly not
similar in scope and magnitude to the wholesale elimina-
tion and restructuring of these benefits for all future Med-
icare-eligible retirees. Exceeding even the 2006 change,
the 2013 changes affected all employees expecting sec-
ondary coverage under DAP and MEDCAP in the future,
not just a subset of new employees. And, as described,
those changes were significant. The Respondent shifted
the burden of choosing a health plan to the individual em-
ployee upon becoming Medicare eligible and removed its
responsibility to provide and administer that coverage, as
it had done in the past for decades. Worse, as a practical
matter, the Respondent effectively undermined the Un-
ions’ effectiveness as a bargaining representative by re-
moving a mandatory subject of bargaining—future retire-
ment health benefits—from the bargaining table, because
the third-party administrator of the new system, with
whom the Unions had no bargaining relationship, con-
trolled the information and appeals process. Such total ab-
dication of responsibility over a mandatory subject of bar-
gaining bears no resemblance to routine plan-specific
changes the Respondent had made in the past, such as re-
ducing benefits or coverage, or increasing premiums.15
For all of these reasons, the Respondent’s asserted past
practice cannot support a waiver finding, whether consid-
ered alone or with the other factors relied upon by the

14 See DuPont I, slip op. at 16 & fn. 22, discussing Caterpillar, Inc.,
355 NLRB 521 (2010). The majority attempts to distinguish Caterpillar
on the ground that it was not decided on a waiver theory. This is a dis-
tinction without a difference—whether a past practice provides corrobo-
rative evidence in support of waiver, or establishes a continuation of the
status quo, the Board has made clear that it is the employer’s burden to
show that a past practice of similar actions in fact existed. See e.g., Cat-
erpillar, 355 NLRB at 523 & fn. 14 (citing Owens-Corning Fiberglas,
supra); Provena St. Joseph Medical Center, 350 NLRB 808, 815 & fn.
35 (2007); Lincoln Child Center, 307 NLRB 288, 317 (1992) (finding
respondent failed to establish a past practice of removing entire classifi-
cations from the unit); Johnson-Bateman Co, 295 NLRB 180, 188 (1989)
(union’s past acquiescence in certain work rules did not waive its right
to bargain about new dissimilar rule); Owens-Corning Fiberglas, 282
NLRB at 613 (no waiver because “the historical changes were not the
same as this one”); compare FirstEnergy Generation Corp., 358 NLRB
842, 851 (2012) (rejecting argument that the employer’s unilateral
change wholly unrelated to previous changes “constituted a mere contin-
uation of the status quo”), affd. 362 NLRB 585 (2015) (Board reaffirm-
ing judge’s ruling and incorporating prior Board decision under NLRB v.
Noel Canning, 573 U.S. 513 (2014)).
In DuPont I, I also explained the majority’s misplaced reliance on
California Pacific Medical Center, 337 NLRB 910 (2002), and Omaha
majority. Notably, the Board has held that where the “the
principal factors cited in Omaha World-Herald do not es-
tablish waiver,” past practice is immaterial.16 The facts
involving Local 992 establish that this is such a case. In
sum, the collective-bargaining agreement, the bargaining
history, the past practice, when considered individually or
together, do not amount to a “clear and unmistakable
waiver.”
C. Local 788 (Louisville)
The undisputed facts involving Local 788 weigh even
more heavily against finding that it waived its right to bar-
gain over the Respondent’s 2013 changes. The key details
are as follows: (1) after a history of changing representa-
tion, the applicable collective-bargaining agreement,
which Local 788 adopted from its immediate predecessor
(the United Steelworkers Union (USW)), did not refer to
DAP or MEDCAP; (2) the applicable collective-bargain-
ing agreement contained an integration clause that specif-
ically stated that it superseded all previous collective-bar-
gaining agreements; (3) Local 788 took no part in the ne-
gotiation of DAP and MEDCAP, and there is no bargain-
ing history of such initial negotiations in the record; and
(4) Local 788 had only represented the Respondent’s em-
ployees for 2 years during which there were unilateral
changes—but none that resembled the elimination of DAP
and MEDCAP for all future Medicare-eligible retirees.
For approximately 50 years, one of Local 788’s early
predecessors, the Neoprene Craftsmen’s Union (NCU)
represented production and maintenance employees at the
Respondent’s facility in Louisville. For a time, NCU did
agree to incorporate both DAP and MEDCAP into its col-
lective-bargaining agreements with the Respondent. But
World-Herald, 357 NLRB 1870, 1872 (2011), both cases in which the
Board found that the union had waived its right to bargain over certain
changes that were similar to those previously made by the employer, un-
like the 2013 changes in this case. And, in California Pacific Medical
Center, there were additional factors—all grounded in the applicable col-
lective-bargaining agreement—that supported a waiver finding. DuPont
I, slip op. at 16.
15 The majority denies that the 2013 changes undermined the Unions’
effectiveness, speculating that the Respondent stood ready to negotiate a
separate site-specific plan for its represented employees upon request.
Whether the parties could have bargained over a different plan is beside
the point. Without evidence of waiver analyzed under current prece-
dents, the Respondent could not lawfully unilaterally change its employ-
ees’ future health insurance benefits without bargaining. NLRB v. Katz,
369 US 736, 746–747 (1962). And the fact that DAP and MEDCAP were
companywide plans, which the majority claims would not be the case if
they could not change them without bargaining with the Unions, has not
previously persuaded the Board otherwise. Omaha World-Herald,
above, 357 NLRB at 1871 & fn. 5 (citing Rockford Manor Care Facility,
279 NLRB 1170, 1172–1173 (1986)); Mid-Continent Concrete, 336
NLRB 258, 259 (2001).
16 See Tesoro Refining & Marketing Co., 360 NLRB 293, 294 fn. 9
(2014).
E.I. DU PONT DE NEMOURS AND COMPANY 17
that ended in 1992. The 1992 collective-bargaining agree-
ment between NCU and the Respondent was the last to
incorporate both DAP and MEDCAP. The 1994 and 1997
collective-bargaining agreements between NCU and the
Respondent incorporated BeneFlex for active employees,
although those agreements did continue to list DAP as a
benefit.
Then began a series of changes to the employees’ rep-
resentative. In short, in 2002 NCU voted to affiliate with
PACE, and became PACE Local 5-2002. Then, in 2005,
PACE merged with the United Steelworkers of America
and became USW. Significantly, USW’s 2006 collective-
bargaining agreement with the Respondent contained no
references to either DAP or MEDCAP, and referred only
to BeneFlex. Finally, in May 2010, the production and
maintenance employees at Louisville voted to disaffiliate
from USW and form Local 788. Thus, Local 788 was
three-times removed from the collective-bargaining repre-
sentative that originally agreed to DAP and MEDCAP
and, as explained in more detail below, by the time Local
788 did become the employees’ representative, neither of
those plans—or their underlying plan documents—was a
part of the collective-bargaining agreement Local 788 in-
herited.
The collective-bargaining agreement executed on Sep-
tember 7, 2010, which Local 788 adopted from USW, is
the one that was in effect at the time of the Respondent’s
2012 announcement of its unilateral changes. As stated,
that agreement expressly referenced BeneFlex, but made
no mention of DAP or MEDCAP. Further, just like the
agreement applicable to Local 992, Local 788’s agreement
contained an integration clause that stated:
This Agreement supersedes all previous agreements, un-
derstandings, practices, and interpretations which are in-
compatible or inconsistent with any provisions herein
contained and this Agreement constitutes the entire
Agreement between the parties hereto as of the execu-
tion date thereof. However, any amendment which may
hereafter be mutually agreed upon between the parties,
when executed in the same manner as this Agreement,
shall become and be a part of this Agreement.
Article II, Section 3 (emphasis added).
Finally, although for many years the Respondent had
been making the same types of limited changes to DAP
and MEDCAP as described above, it is worth noting again
that Local 788 had been the representative for only 2 years
preceding the Respondent’s announced elimination of

17 DuPont I at 15 & fn. 18–20; Graymont PA, Inc., 364 NLRB No.
37, slip op. at 3 (2016) (finding no evidence that the parties “fully dis-
cussed and consciously explored” the subjects “during bargaining over
DAP and MEDCAP at issue here. And, in any event, none
of those prior changes fundamentally altered DAP or
MEDCAP.
On those particular facts, the majority’s rationale for ac-
cepting the Respondent’s argument that Local 788 waived
its right to bargain is even weaker than its argument for
finding that Local 992 waived its bargaining rights.
The majority essentially repeats the same analysis it em-
ployed in DuPont I, but ignores the additional fact that Lo-
cal 788 was not the party that agreed to DAP and
MEDCAP, and never signed a collective-bargaining
agreement incorporating either of those benefit plans or
the plans’ respective underlying documents. That fact fur-
ther undermines the majority’s reliance on past collective-
bargaining agreements as proof of waiver (which, as ex-
plained, are irrelevant in any event). There simply is no
basis for holding Local 788 to the terms of agreements that
were negotiated (and expired) years beforehand by a dif-
ferent union.
Further, as explained, even if Local 788 could somehow
be assigned responsibility for its predecessors’ agree-
ments, the fact remains that the parties’ 2010 agreement—
the only one in effect when the Respondent made the
changes at issue here—was the operative agreement and
it did not refer to DAP, MEDCAP, or to their plan docu-
ments containing the reservation-of-rights clauses. Ac-
cordingly, for the reasons I explained in Dupont I, any bar-
gaining history pertaining to past agreements is irrele-
vant.17 Finally, the 2010 agreement is also significant in-
sofar as it does reference BeneFlex. That shows the par-
ties knew how to refer to a benefit plan and knew the sig-
nificance of doing so.
Finally, the scant alleged past practice engaged in by the
Respondent since Local 788’s certification included only
2 years of changes to premiums, scope of coverage, and
benefits under DAP and MEDCAP; all prior changes, in-
cluding the 2006 change presented in Dupont I, occurred
prior to Local 788’s representation and therefore are irrel-
evant.18 The Respondent simply has not established that
the changes that occurred during that limited period were
sufficiently similar in scope and magnitude to establish a
past practice in the first instance, or to permit the whole-
sale elimination and restructuring of employees’ future
benefits when eligible for Medicare. For these and other
reasons explained above in relation to Local 992, the Re-
spondent’s asserted past practice cannot support a waiver
finding, whether considered alone, or with the other fac-
tors relied on by the majority. See Tesoro, above
the current contract language” (emphasis added), citing Johnson-Bate-
man Co., 295 NLRB 180, 185 (1989)).
18 Eugene Iovine, Inc., 356 NLRB 1056 (2011) (citing Eugene Iovine,
Inc., 328 NLRB 294 (1999)).
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(distinguishing Omaha World-Herald, above). See
DuPont I slip op., at 16.
D. Local 593 (Nashville)
None of the particular facts relating to Local 593, indi-
vidually or collectively, support a finding of waiver. The
key facts are similar to those applicable to Locals 992 and
788 above: (1) the relevant collective-bargaining agree-
ment does not refer to DAP or MEDCAP; (2) the bargain-
ing history does not support a finding of waiver; if any-
thing, it shows that the Respondent did not envision the
reservation-of-rights clause in the plan document to en-
compass changes like the 2013 changes; (3) the benefits at
issue were unilaterally changed many times, but the
changes never resembled the elimination of DAP and
MEDCAP for all future Medicare-eligible retirees.
The Respondent has had a collective-bargaining rela-
tionship with Local 593 at its Nashville facility for over
50 years. When the Respondent first introduced DAP
there it was incorporated into the parties’ 1976 collective-
bargaining agreement. After Local 593 agreed to partici-
pate in MEDCAP, the parties entered into a supplemental
agreement in 1983 that added a reference to MEDCAP to
the collective-bargaining agreement. The parties’ 1987
agreement, however, was the last one to reference both
DAP and MEDCAP. As stipulated by the parties, neither
DAP, MEDCAP, nor their plan documents were referred
to in any agreement after that time, including the 1995
agreement that was in effect when the Respondent made
the changes at issue here.19
Once again, Board precedent establishes that because
the reservation-of-rights clauses were not in the relevant
collective-bargaining agreement, they cannot be relied on
to find a clear and unmistakable waiver. References to
DAP and MEDCAP had been removed by the time the
parties’ executed their 1995 agreement—18 years before-
hand. And for reasons explained above, the parties’ ex-
press inclusion of BeneFlex in that agreement demon-
strates that the parties understood both how to incorporate
a benefit plan into the agreement—and the significance of
doing so. Again, the deletion of references to DAP and
MEDCAP deprives those deleted provisions of their

19 While Local 992 and Local 788 provided evidence of an integration
clause in their collective-bargaining agreements, the excerpts in the rec-
ord of Local 593’s collective-bargaining agreements did not include a
similar provision. I nevertheless find insufficient evidence of waiver
even without such a clause, for all the other reasons explained below and
in DuPont I, subject to the factual variations described above.
20 Although the judge did not analyze recent bargaining history, bar-
gaining notes from a negotiation session held January 21, 1994, 18
months before the parties executed the 1995 collective-bargaining agree-
ment, show, at most, that Local 593 was aware that the Respondent “re-
served the right to amend any provisions of the Company plan,
probative value in determining whether Local 593 waived
its right to bargain over the 2013 changes in the benefit
plans.
Nor does bargaining history contribute to a finding of
waiver. As the judge noted, the record does not contain
bargaining notes “relating to the inclusion of a manage-
ment-rights provision in MEDCAP or DAP.” As dis-
cussed above, and in DuPont I, even if such bargaining
history were in the record, it is simply not relevant to this
case.20
Finally, as in the cases of the other Unions, the Re-
spondent’s pre-2013 changes to DAP and MEDCAP do
not establish a waiver based on past practice. Again, those
changes in and of themselves did not constitute a past
practice, and there certainly was no “thread of similarity”
linking the past changes to the 2013 change. The Re-
spondent’s statements made in bargaining in January
1994, noted above, only serve to reinforce that the 2013
changes differed markedly in scope and magnitude from
those that the Respondent envisioned or that had been ac-
cepted in the past by Local 593 without objection.
In sum, the collective-bargaining agreement, bargaining
history, and past practice, when considered together, do
not add up to a finding of “clear and unmistakable” waiver
by Local 593.
IV.
Although the Omaha World Herald Board endorsed the
notion that an “amalgam” of factors may establish waiver
in a particular case, it also emphasized that it was not
adopting—or endorsing—either a dilution or abandon-
ment of the stringent “clear and unmistakable waiver”
standard. Yet that is effectively what the majority does
again here by holding that all three Unions, despite the
factual differences in their histories and collective-bar-
gaining agreements, waived their statutory right to bargain
over the Respondent’s unprecedented 2013 changes. My
colleagues rely on long-abandoned contractual and extra-
contractual language, stale bargaining history, and irrele-
vant past changes to find waiver. But that finding is not
supported by substantial evidence, at least applying the
“clear and unmistakable waiver” standard as the Board has
traditionally understood it. Today’s decision, together
MEDCAP, that were deemed necessary.” But after providing the plan
language to Local 593, the Respondent further clarified the sorts of
changes that could be expected: “The recent changes in deductibles, stop-
loss, and premiums were examples of such changes.” I do not find that
this exchange shows that Local 593 “fully discussed” and “consciously
explored” the reservation-of-rights clause and “consciously yielded” its
right to bargain over the total elimination of benefits for MERs, and their
replacement with a voucher system. Johnson-Bateman Co., 295 NLRB
at 185. If anything, it shows that a total restructuring of secondary insur-
ance was not the type of change the Respondent envisioned to be covered
by the reservation-of-rights clause.
E.I. DU PONT DE NEMOURS AND COMPANY 19
with DuPont I, again lowers the bar to unilateral action in
a way that cannot be reconciled with Board precedent and
that is detrimental to the Act’s policy of encouraging col-
lective bargaining. Accordingly, I dissent.
Dated, Washington, D.C. September 4, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
Gregory M. Beatty and Jason Usher, Esqs., for the General
Counsel.
Kris D. Meade and Glenn D. Grant, Esqs. (Crowell & Moring
LLP), of Washington, D.C., for the Respondent.
Kenneth Henley, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Washington, D.C. on June 12 and July 17, 2013, and
Nashville, Tennessee on August 27 and 28, 2013. The Ampthill
Rayon Workers, Inc., Local 992, International Brotherhood of
Dupont Workers (the Union or Local 992), Freon Craftsman Un-
ion, Local 788, International Brotherhood of Dupont Workers
(the Union or Local 788), and International Brotherhood of
Dupont Workers (IBDW), Local 593, Old Hickory Employees
Council (the Union or Local 593) (collectively, the Unions), rep-
resent employees at E. I. Du Pont De Nemours and Company’s
(the Company) facilities in Richmond, Virginia, Louisville, Ken-
tucky, and Nashville, Tennessee, respectively. They allege that
the Company violated Section 8(a)(5) and (1) of the National La-
bor Relations Act (the Act)1 in January 2013 by implementing
changes to employees’ medical and dental benefits without first
bargaining with them. The Company concedes that it made the
unilateral changes but contends that the Unions previously
waived their rights to insist on bargaining over changes to em-
ployee-members’ healthcare and dental benefits.2
On the entire record,3 including my observation of the

1 29 U.S.C. Secs. 151–169.
2 The parties stipulated that all of the charges and amended charges
were timely filed and served. (Jt. Exh. 4 at ¶¶ 58–59, 69–70, 81–82.)
3 Just as in Case 05–CA–33461, there was little dispute as to the rel-
evant facts. The parties stipulated to receipt of the hearing transcript in
that case, as well as 106 sets of facts spanning three decades of their
collective-bargaining relationship. (Jt. Exhs. 1–4.) In addition, the parties
have long followed a custom and practice of relying on the Company’s
notes of their collective-bargaining meetings and I credit those records
as fairly and accurately depicting what was discussed at those meetings.
(Jt. Exhs. 21, 25, 32.) While there was testimony that the notes were not
a “verbatim recitation” of the meetings, they were, at the very least “in-
structive” summaries as to the parties’ positions on the issues. (Tr. 214.)
demeanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a Delaware corporation, has been engaged in
the manufacture of synthetic fibers and related products at its
Richmond, Virginia,4 Nashville, Tennessee5 and Louisville,
Kentucky facilities each of which annually sells and ships prod-
ucts, goods, and materials valued in excess of $50,000 directly
to points outside the state where the facility is located. The Com-
pany admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act
and that the Unions are labor organizations within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties
Headquartered in Wilmington, Delaware, the Company oper-
ates several facilities located throughout the United States. As of
January 1, 2013, the Company had more than 34,000 employees
in the United States, less than 3,700 of which were represented
by a labor organization. In addition, approximately 80,000 com-
pany retirees and dependants participate in the Company’s cor-
porate-wide benefit plans.6
The Company employs approximately 2,500 employees at the
Richmond plant, approximately 1,170 of whom are hourly pro-
duction and maintenance (P&M), workers and clerical, technical
and office (CT&O) workers represented by Local 992. Local 992
represents P&M workers in one bargaining unit and CT&O
workers in a separate unit. It has represented employees at the
Richmond site for more than 50 years.7 Local 992’s executive
committee meets with Richmond management twice a month to
go over daily affairs and contract administration, while the
CT&O and P&M Contract Committees meet with management
during collective-bargaining negotiations.8 The most recent col-
lective-bargaining agreement (CBA) between the Company and
Local 992 for the P&M unit is dated September 1, 2012. The
most recent CBA entered into between the Company and Local
992 for the CT&O unit is dated October 1, 2000.9
The Company employs approximately 170 employees at Lou-
isville. Approximately 96 of those employees are hourly produc-
tion, maintenance, and clerical workers represented by Local
4 This facility is actually located in nearby Ampthill, Virginia, and is
also referred to as the Spruance plant.
5 This facility is located in the Old Hickory section of Nashville, Ten-
nessee, and is also referred to as the Old Hickory plant.
6 Mary Jo Anderson, an in-house counsel and a credible witness,
drafted the Company’s corporate-wide health care plan provisions. As in
the earlier case, there was no dispute as to her testimony that the Com-
pany’s longstanding practice of maintaining a single set of benefit plans
covering all of its employees and retirees was beneficial to the Company
and its employees for economic, administrative and other reasons. (Tr.
540; Jt. Exh. 2 at 142–145.)
7 Jt. Exh. 4 at ¶2.
8 Jt. Exh. 2 at 33–34.
9 Jt. Exh. 19–20.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
788.10 One of Local 788’s predecessors, the Neoprene Crafts-
men’s Union (NCU) represented production and maintenance
employees at Louisville for approximately 50 years. In June
2002, the NCU voted to affiliate with PACE, and became PACE
Local 5-2002. In April 2005, PACE merged with the United
Steelworkers of America and became USW. In May 2010, the
production and maintenance employees at Louisville voted to
disaffiliate from the USW and form Local 788. Local 788 and its
predecessor unions have represented employees at Louisville for
more than 50 years.11 The current CBA became effective on Sep-
tember 7, 2010.12
The Company employs approximately 240 employees at
Nashville. Approximately 120 of those employees are hourly
production and maintenance workers represented by Local 593.
Local 593 has represented production and maintenance employ-
ees at Nashville for more than 50 years.13 The most recent CBAs
are dated April 7, 1976, February 13, 1987, and July 25, 1995.
The 1995 CBA is still in effect.14
B. The Company’s Corporate-Wide Benefit Plans Generally
At all relevant times, the Company has maintained one set of
corporate-wide employee benefit plans for all of its employees
within the United States, whether they are unionized, non-repre-
sented, or in managerial positions. The Company’s stated pur-
poses for maintaining a single set of corporatewide plans are: (1)
to ensure that all employees, regardless of location, job title of
union affiliation, receive the same benefits based on years of ser-
vice and other criteria; (2) to foster easier plan administration
and compliance with applicable legal requirements; and (3) pro-
vide significant economies of scale that allow the Company to
offer plan participants lower premiums and better service.15
The Company has frequently communicated to Locals 593,
788 and 992 that employees and/or retirees from a single
worksite would not achieve the same level of benefits at the same
rates if their labor representatives negotiated for benefit plans
that were limited to represented employees and/or retirees from
a single worksite.16
Each of the Company’s corporate-wide benefit plans contains
a “reservation of rights” provision stating that the Company re-
tains the right to change or modify the plans at its discretion.17
Consistent with those provisions, the CBAs applicable to the
Company’s union-represented worksites all contain an “Indus-
trial Relations Plans and Practices” (IRP&P) provision. Section
1 of the IRP&P provision contains a list of corporate-wide ben-
efit plans available to employees at the worksite. The IRP&P
provision grants the Company the right to make changes to the
listed plans, subject to the certain restrictions set forth in the

10 Jt. Exh. 4 at ¶ 3.
11 Subsequent references to Local 788 include the actions or inaction
of its predecessors. (Id. at ¶ 4.)
12 Excerpts from the Louisville CBAs dated March 22, 1974, March
22, 1976, March 22, 1978, April 28, 1980, April 30, 1982, May 1, 1985,
April17, 1989, June 12, 1992, May 25, 1994, June 13,1997, June 1, 2006
and September 7, 2010, were received as Jt. Exh. 30(a), 6(d), 30(b)-(f),
9(a) and 9(b), 30(g)-(h), and 31, respectively.
13 Jt. Exh. 4 at ¶¶ 5, 61.
14 Jt. Exhs. 6(c), 7 and 8.
15 Jt. Exh. 2 at 143; Jt. Exh. 4 at ¶¶ 6–7, 12.
IRP&P provision and the benefit plan documents themselves.18
The Company assesses its benefit plans and plan offerings on
an ongoing basis. When it determines the need to make adjust-
ments, it has modified the plans or plan offerings. Before imple-
menting modifications, however, the Company typically meets
with each Union at its worksite. At these meetings, the Company
notifies the Union of its intention to make the modifications, dis-
cusses and provides information about the changes, and usually
answers questions about the modifications.19
Information concerning changes to benefits is provided to
company employees, retirees, and other benefit plan participants
in a variety of ways. Specifically, company employees, retirees,
as well as the Unions, have been notified of changes to the Com-
pany’s corporate-wide benefit plans through publications such as
“Plain Talk” and “Extensions” magazines, “Benefit Bulletins,”
“BeneFlex Guides,” “Benefit Highlights,” “Retiree Health Care
Highlights,” “Health Care Communication to Employees,” “Em-
ployee Information Bulletins,” “Plant Communications,” bene-
fits Q&As, and benefit-related PowerPoint presentations, as well
as through notices of material modifications, letters, and emails
sent to employees and/or retirees. In recent years, company em-
ployees, retirees, and Unions have also been directed to com-
pany-sponsored websites for more information concerning ben-
efits provided through the Company’s corporatewide benefit
plans and changes affecting those benefits.20
C. DAP, MEDCAP, and BeneFlex
1. DAP
The two benefit plans at issue in this case, the Dental Assis-
tance Plan (DAP) and Medical Care Assistance Program
(MEDCAP), are corporate-wide benefit plans. DAP was created
in early 1976 and offered nationwide to eligible employees and
retirees. The DAP Plan Document and its accompanying Sum-
mary Plan Description (SPD) both contained reservation of
rights clauses. Subsequent versions of the DAP Plan Document
and SPD since 1976 have contained virtually the same reserva-
tion of rights provision recognizing the Company’s right to sus-
pend, modify, or terminate DAP at any time.21
At worksites where employees were represented by a union,
such as at Richmond, Louisville, and Nashville, the Company
presented the Unions with the DAP Plan Document and offered
union-represented employees the opportunity to participate in
DAP on the same basis as nonunion employees, subject to the
terms of the DAP Plan Document.22
After bargaining over member participation, unions at the
Company’s represented sites agreed to have their members par-
ticipate in DAP. DAP was then added to the list of corporate-
16 Except where a specific page is identified, record evidence is re-
ferred to by the last 4 digits of its Bates-stamped designation, thus drop-
ping the preceding “DUP000.” (Jt. Exh. 4 at ¶ 8; R. Exh. 3 at 8822.)
17 Jt. Exh. 5(a)-(c) are excerpts from the Company’s various corpo-
ratewide benefit plan documents setting forth examples of the reserva-
tion of rights language in each plan. (Id. at ¶ 9.)
18 Id. at ¶ 10.
19 Id. at ¶¶ 11, 14, 27.
20 Id. at ¶ 13.
21 Id. at ¶¶ 15-16.
22 Id. at ¶¶ 17, 22.
E.I. DU PONT DE NEMOURS AND COMPANY 21
wide benefit plans listed in the IRP&P provisions at the Rich-
mond, Louisville, and Nashville sites, as well as other employee-
represented sites.23
2. MEDCAP
On January 1, 1983, the Company offered MEDCAP as a
healthcare plan option to its employees nationwide. Like DAP,
the MEDCAP Plan Document and its accompanying SPD both
contained reservation of rights clauses. All iterations of the
MEDCAP Plan Document and SPD since 1983 have contained
the same reservation of rights provision.24
Initially, MEDCAP provided benefits to eligible employees
and retirees. MEDCAP was initially referenced in the Louisville
and Nashville CBAs but has never been expressly referenced in
any of the Richmond CBAs. The CBAs covering the Richmond
CT&O and P&M bargaining units from 1984 through 1991 con-
tained a Hospital and Medical-Surgical (HMS) coverage provi-
sion expressly referencing Blue Cross of Virginia and Blue
Shield of Virginia.25
Article XIX of the MEDCAP Plan Document describes the
Company’s rights and authority as Plan Administrator.26 Article
XVI states that “premiums under this Program during each Plan
Year will be determined by the Company.” Article XX states that
the “Company reserves the right to amend any provision of this
Program or terminate the Program in its entirety should either
course of action be deemed necessary by the Company.” The
MEDCAP SPD also addresses the Company’s right to suspend,
modify, or terminate the plan.27
Under MEDCAP, participants were required to submit claims
within two years from the date of service. The reimbursement
process under the MEDCAP SPD required submission of certain
information, including a description of the service provided,
dates of service, diagnostic and treatment codes, proof of pay-
ment. Participants have a right to appeal to the Company about
claims issues.28
Medicare-eligible retirees (MER or MERs) had an annual
stop-loss provision, in which once the MER “reach[ed] the indi-
vidual or family stop-loss, the Medical Plan covers 100 percent
of R&C or, if applicable the Network Negotiated Rate, for the
remainder of the Plan Year.” Additionally, under MEDCAP,
MERs could receive a maximum $1.5 million “for all covered
medical expenses incurred on account of any one person in any
one Plan Year.”29
3. Unions Agreed to Participate in Plans
In the past, the Company’s Unions, including Locals 593, 788

23 Id. at ¶¶ 18, 63; Jt. Exhs. 6(a)-(d); R. Exh. 3 at 8309, 8311; R. Exh.
8.
24 Id. at ¶ 19; Jt. Exhs. 1 at ¶¶ 6–7, 12(b) at ¶ 21.
25 Id. at ¶ 20.
26 Jt. Exh. 1 at ¶ 8.
27 Id. at ¶9; Jt. Exh. 12(b) at 120.
28 Jt. Exh. 10 at 206–208.
29 Jt. Exh. 10 at 178–179.
30 Id. at ¶ 25.
31 R. Exh. 3 at 8309, 8311; R. Exh. 8 at 8260.
32 R. Exh. 3 at 8332, 8364, 8371, 8393–8402, 84336–8437, 8450–
8452, 8499–8501, 8504; R. Exh. 6(a)-(b); R. Exhs. 5(a) at 17011–17012,
5(b) at 16358.
and 992, have had the option to decline to participate in the Com-
pany’s corporatewide plans, and to propose alternative, site-spe-
cific plans in lieu of the Company’s corporate-wide plans. Some
unions, including Local 788, have, on occasion, proposed site-
specific benefit plans.30
Local 992 agreed to the Company’s DAP proposal in 1976
after discussions over its inclusion of a reservation of rights pro-
vision. DAP was then included as an additional item under the
CBA’s IRP&P provision.31 After 6 years of discussions, Local
992 agreed to participate in MEDCAP in 1986 after expressing
its objections to inclusion of reservation of rights language in the
plan document.32
Local 788’s predecessor agreed to have its members partici-
pate in DAP, and it was added to the list of IRP&P plans in the
1976 CBA. In 1984, Local 788’s predecessor also agreed to have
its members participate in MEDCAP in 1984, and MEDCAP
was added to the HMS provision of the parties’ 1985 CBA.33
DAP was added to the list of IRP&P plans in the 1976 CBA
at Nashville. Local 593 agreed to participate in MEDCAP in
1983, subject to the terms of the MEDCAP Plan Documents. The
parties’ agreement was memorialized in a supplemental agree-
ment executed on December 9, 1983, and effective April 1,
1984.34 The current CBA was signed in 1995; MEDCAP and
DAP are not included or referenced in that CBA.35
4. BeneFlex
In 1991, the Company created a new cafeteria-style benefits
plan called the BeneFlex Flexible Benefits Plan (BeneFlex).
Within BeneFlex are several sub-plans providing various types
of benefits, including medical and dental benefits. BeneFlex was
presented to the Unions in the early 1990s at worksites where
employees were represented by a union. The Company offered
union-represented employees the opportunity to participate in
BeneFlex on the same basis as nonunion employees, subject to
the terms of the BeneFlex documents.36
Local 992 agreed to BeneFlex in 1993;37 Locals 593 and 788
agreed to BeneFlex in 1994.38 In furtherance of the changes, the
HMS provision was deleted from the Richmond and Nashville
CBAs at the same time that a new IRP&P provision, “Section 3”
addressing BeneFlex, was added to those agreements.39 The
HMS provision was modified in the 1994 Louisville CBA to add
BeneFlex and delete the other medical plans formerly referenced
in that provision.40
Once a union accepted BeneFlex, and its employee members
began receiving medical and dental benefits under the BeneFlex
Medical Assistance Plan and BeneFlex DAP, they became
33 Id. at ¶ 74–75; Jt. Exhs. 6(d), 30(e).
34 Jt. Exh. 4 at ¶¶¶ 4, 17, 19, 63–64, 75; Jt. Exhs. 6(d), 27.
35 Jt. Exh. 8.
36 Jt. Exh. 4 at ¶ 21.
37 Local 992’s acquiescence came after two years of negotiations. (R.
Exh. 3 at 8616–8619, 8691–8693.)
38 BeneFlex was previously offered to Local 593, but not accepted
until 1994; (Jt. Exh. 25 at 1100–1104, 1118–1120; Jt. Exh. 9(b) at 22;
Tr. 371.)
39 Jt. Exh. 4 at ¶ 22; Jt. Exh. 7–8; R. Exh. 6(a)-(b), 7(a)-(b).
40 Id. at ¶ 22; Jt. Exh. 9(a)-(b).
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ineligible to continue receiving benefits through MEDCAP and
the DAP. Retirees and eligible dependants remained eligible to
receive medical and dental benefits through MEDCAP and DAP,
however, so long as they continued to meet the eligibility criteria
in the respective plans. The medical and dental benefits offered
through BeneFlex mirror those under MEDCAP and DAP.
Changes made to the BeneFlex medical and dental plans have
been carried over and implemented with respect to the mirror
versions of MEDCAP and DAP.41
Employees represented by Locals 593, 788, and/or 992 cur-
rently receive medical and dental benefits under BeneFlex. Eli-
gible pensioners who have retired from the worksites represented
by Locals 593, 788, or 992, along with their eligible dependents,
currently receive medical benefits through MEDCAP and dental
benefits through DAP.42 Prior to 2013, MERs simply had to sub-
mit a form expressing their intention to continue utilizing the
Company’s insurance in retirement, with premiums deducted
from their pension payments. As was the case during active ser-
vice, retirees did not have to submit any documentation if they
refrained from making any changes in coverage during annual
enrollment periods.43
D. Changes to DAP and MEDCAP Prior to 2013
The Company announced and made numerous changes na-
tionwide to DAP and/or MEDCAP during the period from 1976
to 2012.44 Historically, the Company has announced changes to
its corporatewide benefit plans, including DAP and MEDCAP,
in the late summer or fall of each year, prior the “open enroll-
ment” period in which employees and retirees select their bene-
fits options for the then-upcoming year. The announced changes
have typically gone into effect on January 15 of the following
year, which is the beginning of the benefit plan year for DAP and
MEDCAP, as well as other corporate-wide plans.45
Before these modifications took effect, the Company typically
met with each union at its worksite. At these meetings, the Com-
pany notified the union of its intention to make the modifica-
tions, provided benefit-related publications and other infor-
mation, and discussed and answered questions about the modifi-
cations.46
The Company did not, however, usually seek the agreement
of Locals 593, 788, and 992 before implementing the changes.47
The Company often informed Locals 593, 788, and 992 that it
would not bargain over specific changes to its corporatewide
plans because those plans also provided benefits to participants
not represented by a union. However, while the Company has
informed the Unions that it would not bargain over changes to
corporate-wide plans, it has consistently expressed a willingness

41 Id. at ¶ 23.
42 Id. at ¶ 24.
43 This finding is based on the credible and unrefuted testimony of
James Palmore, vice president of Local 992. (Tr. 113, 125.)
44 Jt. Exh. 4 at ¶¶ 26, 50; Jt. Exh. 10(a)-(b); R. Exh. 11(a)-(b).
45 Jt. Exh. 4 at ¶ 27.
46 Id. at ¶¶ 27, 51, 62, 73; Jt. Exhs. 21–22, 25–26, 32–33; R. Exh. 3 at
8511, 8691.
47 Id. at ¶ 28; R. Exh. 11(a); Jt. Exh. 10(a).
48 Id. at ¶ 29; Jt. Exh. 25 at 1031-1032, 1034; R. Exh. 3 at 8308, 8570,
8822.
to bargain over employee benefits and consider any site-specific
benefit plan proposals that Locals 593, 788, and 992 wished to
make.48
1. Local 992’s requests for information and bargaining
prior to 2013
The Company has implemented numerous changes to its ben-
efit plans since 1987. On at least 50 occasions, the Company an-
nounced changes to healthcare premiums, deductibles, copays
and annual plan limits, benefit options, terms of coverage, and
participant eligibility relating to working spouses and depend-
ents.49
Since at least 1988, Local 992 has requested information re-
lating to many of those unilateral changes in benefits, including
premiums, cost estimates and related data, and available insur-
ance carriers. In numerous instances when it agreed that the in-
formation was relevant, the Company agreed to the request.50
Some of the unilateral changes increased coverage. In 2004,
for example, the Company added a network of 58,000 dentists.51
That same year, the Company announced coverage eligibility in
its corporatewide benefit plans for an additional category of de-
pendents—the same-sex domestic partners of employees.52
Mostly, however, the Company’s unilateral changes tended to
reduce or restrict benefits.
On April 12, 1988, the Company reiterated the distinction be-
tween local and corporate-wide benefit plans. The Union had re-
quested the Company bargain over scheduled changes to DAP.
The Company refused but noted that the plant manager could re-
place a corporate-wide plan with a local plan, which it would
consider. The Company reiterated the distinction between local
and corporate-wide health plans and, when Local 992 expressed
an interest in proposing changes, the Company reiterated that it
would not bargain over local changes.53
On October 15, 2002, the Company announced that it would
impose an annual limitation, or cap, on its contributions to retiree
healthcare. The Company also announced an increase in the
share of healthcare costs to be borne by retirees.54 Two weeks
later, the Company announced that retirees would begin paying
a premium for certain types of dental work.55
Finally, some changes amounted to a coordination of benefits
that neither enhanced nor reduced them. In 1993, the Company
expanded medical precertification to 14 procedures. Also, since
employees were to receive medical and dental coverage through
BeneFlex, the Company proposed, and the Union agreed, to de-
lete the HMS provision and replace it with a provision incorpo-
rating BeneFlex into section 3 of the IRPP article in the CBA.56
Between 2007 and 2012, Local 992 responded to the changes
49 R. Exh. 11.
50 GC Exh. 2 at 15270, 15377–15378; GC Exh. 6 at 18151–18153,
18157–18158; GC Exh. 8 at 154–15457; GC Exh. 14 at 17850–17851;
GC Exh. 36 at 5274; GC Exh. 47 at 8584; R. Exh. 3 at 8719–8720, 8840–
8841, 8930–8931; R. Exh. 11 at 8847.
51 R. Exh. 3 at 8932.
52 R. Exh. 3 at 8955–8956.
53 GC Exh. 6 at 18155–18156.
54 R. Exh. 11 at 2443.
55 R. Exh. 3 at 8861–8863.
56 R. Exh. 3 at 8693; R. Exh. 7(a) at 17129 and 7(b) at 16419.
E.I. DU PONT DE NEMOURS AND COMPANY 23
by submitting numerous information requests regarding benefit
changes to the Company for verification. The requests related to
active employees and retirees. The Company typically provided
the information and Local 992 acquiesced to favorable
changes.57
Local 992 has, at times, insisted on bargaining over specific
changes to its corporate-wide plans. The parties discussed and
bargained over two major Company’s proposals to change health
care coverage from 1985 to 1987. These included company pro-
posals to amend the CBA to include a management rights clause
and a new HMS provision.58 Local 992 also requested bargain-
ing in 1987,59 1991, 1992 and 1993,60 1995,61 and 1997,62 199863
and 199964 regarding premium increases, changes in providers,
mergers of health providers and other announced benefit
changes, and the Company occasionally agreed to bargain or, at
least, discuss the details.65 Some changes, such as Local 992’s
acceptance of the Company’s offer to move employees to cover-
age under BeneFlex, were more significant than others.66
Until 2007, however, Local 992 never filed a grievance or un-
fair labor practice charge challenging the Company’s right to
make unilateral changes to either DAP or MEDCAP. The 2007
unfair labor practice related to Company announced changes in
August 2006 to seven of its corporatewide employee benefit
plans, including DAP and MEDCAP. Specifically, the Company
amended the eligibility provisions of DAP and MEDCAP to clar-
ify that employees hired after January 1, 2007, would not be eli-
gible, upon retirement, to participate in DAP and MEDCAP.
DAP and MEDCAP Plan Documents were amended consistent
with the announced changes, and the changes to DAP and
MEDCAP were implemented on January 1, 2007 (2007 Benefit
changes). The Company announced and implemented the 2007
Benefit changes without first bargaining with Locals 593, 788,
or 992.67
On February 16, 2007, Local 992 filed an unfair labor practice
charge alleging the Company violated Section 8(a)(5) and (1) of

57 Palmore and Donny Irvin, Local 992’s treasurer, provided credible
testimony regarding Local 992’s practice of requesting information. (Tr.
34–35, 122; Jt. Exh. 2 at 38.)
58 R. Exh. 3 at 8387–8394, 8398–8399, 8434, 8437, 8450–8452, 8459,
8471–8476, 8480–8482, 8487, 8492, 8499, 8502–8503.
59 GC Exh. 2 at 3–4.
60 R. Exh. 4 at 9072–9074.
61 GC Exh. 4 at 15377–15378.
62 GC Exh. 8 at 15456–15457; R. Exh. 3 at 8737.
63 R. Exh. 3 at 8795.
64 R. Exh. 3 at 8822–8823.
65 Jt. Exh. 4 at ¶ 30; Jt. Exh. 3 at 249–250; GC Exh. 2 at 15277–15278;
GC Exh. 3 at 15265, 15270; GC Exh. 8 at 15456–-15457; R. Exh. 3 at
8736–8737, 8822–8823; R. Exh. 4 at 9072–9074.
66 My finding at fn. 56 of the decision in Case 5–CA–33461 regarding
the consistency of testimony by Anderson and Irvin as to events leading
to bargaining unit members enrolling in BeneFlex is consistent with their
testimony in this case. (Jt. Exh. 2 at 65–68, 147–149.)
67 Jt. Exh. 1 at 5, 16–20, 23–24; Jt. Exh. 4 at ¶ 32; GC Exh. 50.
68 The parties retained the original exhibit numbers from Case 5–CA–
33461, and any new exhibits entered in this case began sequentially with
the last exhibit number in that case. (Id. at ¶ 34.)
69 Case 05–CA–33461 is pending before the Board on exceptions. (Id.
at ¶ 33.) Given the difference in the materiality of the changes involved
the Act without first bargaining over the 2007 Benefit changes.
Region 5 issued a complaint (Case 5–CA–33461) and I con-
ducted a hearing on May 23–24, 2011.68 On August 22, 2011, I
issued a decision concluding that the Company’s refusal to bar-
gain over the 2007 changes violated Section 8(a)(5 and (1) of the
Act.69
2. Local 788’s request for information and bargaining
prior to 2013
At Louisville, the Company had a longstanding practice of
unilateral changes to employee and retiree health and dental care
benefits. Local 788’s predecessor unions responded in several
instances by demanding bargaining. Local 788 demands to bar-
gain in 1996 and 1999,70 2001 through 2004,71 and 200972 related
to premium increases, cost sharing, wellness care, and benefits
for new employees. The Company agreed to bargain in some in-
stances,73 but typically responded that it was entitled to make
such changes under the CBA and Plan Documents.74 In one no-
table instance, in 2000, the Company and Local 788’s predeces-
sor entered into a memorandum of understanding after the Com-
pany attempted to a incorporate a long-term care plan into Bene-
Flex that would have been administered by a third party.75
The Louisville Unions filed several charges contesting the
Company’s right to make unilateral changes to premiums, co-
pays, stop-losses, prescription coverage and payments, health in-
surance options, and dependent coverage between 2001 and
2007.76
In addition to demanding bargaining and filing unfair labor
practices over changes to health benefits, the Louisville Unions
frequently insisted on being provided with relevant information
before the Company implemented changes in health care cost in-
creases and participating providers for employees and retirees.
Typical examples in 1994,77 200078 and 200179 related to lists of
participating health care providers, costs, and prescription cov-
erage. The Company generally provided the information.80
in the two cases and the extensive stipulations of fact between the party,
I decline the General Counsel’s request to apply the principles of issue
preclusion.
70 Jt. Exh. 32 at 818, 870.
71 GC Exh. 58, 60–64.
72 Jt. Exh. 32 at 1000.
73 Jt. Exh. 32 at 895.
74 GC Exh. 25, 55, 57.
75 Jt. Exh. 32 at 885.
76 Evidence of the previous charges was received without objection.
(GC Exh. 51A–H.) In response, the Company offered and I received over
objection by the General Counsel and the Unions, copies of the stipula-
tions resulting from those charges. (R. Exh. 29; Tr. 438–455.) In con-
junction with the inconsistent testimony of Gregory Lowman, Local
788’s president, they establish that the 2007 charge was the only one filed
contesting changes to retiree benefits under MEDCAP and DAP, while
the previous charges related to employee benefit changes to BeneFlex.
(Tr. 254–255, 290, 307, 309, 219, 324–325.)
77 Jt. Exh. 32 at 803.
78 GC Exh. 54 at 1.
79 GC Exh. 56 at 1.
80 Jt. Exh. 32 at 807, 871–872, 904–905, 909.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Local 593’s request for information and bargaining
prior to 2013
At the Nashville plant, the Company also had a longstanding
practice of unilateral changes to employee and retiree health and
dental care benefits. The Company increased premiums for ac-
tive employees and retirees in 1993,81 1998,82 2001 to 2008,83
and 2012.84 It either added or modified deductibles in 200285 and
2008 to 2012.86 Employee and retiree coverage provisions were
changed in 1993,87 2003,88 and 2008 to 2012.89 Eligibility, de-
pendent and prescription coverage was modified in 2001and
2004,90 and 2010 to 2012.91
Several notable changes augmented coverage. In 2004, the
Company added 58,000 dentists to the DAP provider list.92 In
2005, the plan eligibility was modified to make benefits availa-
ble to same-sex partners.93
In several instances, however, Local 593 responded to an-
nounced changes by demanding bargaining and the Company
agreed. In 1984, the Company responded favorably to Local
593’s request for information and demand to bargain over a pro-
posed increase in premiums, and enrollment and claims forms.94
In one notable instance in 1987, the Company responded to Lo-
cal 593’s proposal to change insurance carriers by stating that
such a change required careful consideration as to the costs, ben-
efit levels and claims services to participants.95 In another in-
stance, on January 6, 1993, the Company recognized its bargain-
ing obligation regarding the proportionate share of plan costs to
be borne by the Company and employees.96
In other instances, the Company spurned Local 593’s objec-
tions to changes to corporate-wide health and dental care bene-
fits. In 1993 and 1994, Local 593 objected to Company changes
to MEDCAP, but the Company asserted its rights to make the
changes.97 The Company did, however, bargain with Local 593
over the elimination of Prucare, a local health plan, at Nashvile.98
The Company took similar actions over Local 593’s objections
in 1994 and 1997.99
With respect to changes in insurers, coverage, and increasing
premiums and deductibles to MEDCAP and BeneFlex, Local
593 consistently requested an explanation and details regarding
enrollment, eligibility and the portions of the cost to be borne by
the Company, employees and retirees100 between 1986 and 1992,
2000, 2002, 2006, 2008, and 2010. The Company generally pro-
vided the information.101

81 Jt. Exh. 2 at 89, 179, 182; R. Exh. 2 at 9080; R. Exh. 11 at 713.
82 R. Exh. 11 at 1500–1501.
83 Jt. Exh. 2 at 80, 82, 85, 185-187; Jt. Exh. 3 at 266; Jt. Exh. 10(f) at
175–176; R. Exh. 3 at 8950; R. Exh. 11 at 1058, 1134, 1287, 2445.
84 Jt. Exh. 10(k) at 59.
85 Jt. Exh. 2 at 189; R. Exh. 11 at 2155.
86 Jt. Exh. 10(i) at 40–42; Jt. Exh. 10(f) at 200; Jt. Exh. 10(h) at 37; Jt.
Exh. 10(k) at 60–61.
87 R. Exh. 11 at 676.
88 Jt. Exh. 11 at 2451.
89 Jt. Exhs. 10(k) at 59–62, 10(e) at 24, 10(g) at 141–142; 10(h) at 37;
10(i) at 41–46; 10(j) at 49–57.
90 Jt. Exh. 2 at 192-193.
91 Jt. Exh. 10(k) at 59–62.
92 R Exh. 3 at 8932.
93 Jt. Exh. 2 at 191; Jt. Exh. 3 at 206.
E. The 2013 Changes to the Dental Plan and MEDCAP and
Local 992 Charge
In 2012, the Company decided to make additional changes to
retiree medical and dental coverage for MERs and their covered
dependants, effective January 1, 2013 (2013 Changes). More
specifically, the Company decided to provide secondary medical
and dental benefits to its MERs through a Health Reimbursement
Agreement (HRA). On January 1 of each year, beginning Janu-
ary 1, 2013, each Medicare-eligible participant in MEDCAP and
DAP would have his or her HRA account credited annually with
$1200 for medical benefits and $200 for dental benefits. The re-
tiree’s Medicare eligible spouse or partner would have the same
amounts added to the HRA. The HRA proceeds would then be
available to purchase medical and dental insurance on the open
market through a third-party broker. Unused amounts would roll
over and be available to use in subsequent years. MEDCAP and
DAP participants who became Medicare-eligible during the cal-
endar year would be credited with a prorated contribution for that
year and credited with the full contribution in subsequent
years.102
Pursuant to the 2013 Changes, MERs would enroll in cover-
age of their choice within the options provided under MEDCAP
and DAP, as amended. Enrollment would take place through a
third-party broker, Extend Health, which would assist retirees in
selecting an insurance company and plan. Extend Health is a sep-
arate entity that is neither owned nor operated by the Com-
pany.103 The 2013 changes do not, however, apply to retirees
and their covered dependants until they become eligible for Med-
icare. Retirees and covered dependents not yet eligible for Med-
icare would continue receiving medical and dental coverage un-
der MEDCAP and DAP under the same terms as existed prior to
the implementation of the 2013 changes, until they reach age 65
or become eligible for Medicare due to a disability.104
On August 15, 2012, the Company announced the 2013
changes: MERs would have until December 31, 2012, to choose
supplemental coverage from among 75 insurance carriers. The
failure to do so would result in the irrevocable declination of
coverage. The Company also provided information about the
changes on its website. The information included details about
the new coverage per individual—fixed at $1200 for health care
and $200 for dental care—and how to contact Extend Health.105
However, the Company had no information as to the type of
94 Jt. Exh. 25 at 1026–1027.
95 Id. at 1033–1035.
96 R. Exh. 4 at 9075.
97 Jt. Exh. 25 at 1161.
98 Id. at 1158–1161.
99 Id. at 1182, 1566.
100 The credible testimony of Todd White, Local 593’s president, re-
garding Local 593’s customary practice is corroborated by numerous Ex-
ecutive Committee notes. (Tr. 260–261; Jt. Exh. 25 at 2.)
101 Jt. Exh. 25 at 1031–1032, 1051, 1073–1074, 1102, 1119, 1155,
1236, 1240, 1293, 1327, 1329.
102 Jt. Exh. 4 at ¶ 35.
103 Id. at ¶¶ 36–37.
104 Id. at ¶ 39.
105 Id. at ¶¶ 38, 53, 66, 77; Jt. Exh. 11(a)-(g).
E.I. DU PONT DE NEMOURS AND COMPANY 25
coverage that would actually be made available to its MERs or
the cost of premiums.106
While Local 788 got advanced notice of the 2013 changes,107
the changes were implemented unilaterally without bargaining
with any unions, including Locals 573, 788, and 992.108 They
applied corporate-wide and, according to the Company, were in-
tended to (a) offer MERs greater choice in health care plans to
supplement their Medicare coverage; (b) provide greater per-
sonal flexibility in the selection of benefit plans, allowing a
MERs and their spouses, partners or dependants to choose dif-
ferent plans; (c) provide the possibility of savings in total out-of-
pocket health care expenses depending on upon the plans se-
lected; and (d) provide the Company with cost stability and a
simplification of plan administration. The 2013 Changes were
effectuated through amendments to the DAP and MEDCAP Plan
Documents.109
Company officials met with Local 992 on August 15, 2012, to
discuss the 2013 Changes and answer related questions.110 Retir-
ees were informed two days later that educational sessions would
be conducted in August and September 2012 at various locations
around the country, during which the retirees would receive de-
tailed information about the 2013 Changes and how to enroll in
the available health care options through Extend Health.111
Following the announced changes, Local 992 requested infor-
mation on at least five occasions from the Company, including a
list of providers, plan documentation and dependent coverage.
Bruce Harris, the Company’s labor relations manager at Rich-
mond, told Donny Irvin, Local 992’s treasurer, that there was no
such list.112
Locals 593, 788, and 992 also objected to the 2013 Changes,
which are not arbitrable.113 On October 2, 2012, Locals 992 and
788 wrote to the Company and demanded it rescind the
changes.114 The Company responded by letters, dated October
19 and 22, 2012, and told them that it would not rescind the 2013
Changes because it believed it had no duty to bargain over the
changes.115 Local 593 responded three weeks later with a similar
demand that the Company rescind the 2013 Changes. The Com-
pany rejected the Union’s request later that day.116

106 The consistent testimony of Company and Union witnesses reveals
that the Company did not know what benefits would actually be provided
to employees. (Tr. 37, 177, 187–188, 210, 237–238, 263, 293, 332–333,
380–383, 393, 411, 417, 42–428, 495, 540.)
107 Lowman was told of the changes a few days earlier. (Tr. 285–287.)
Todd White, Local 593’s president, however, did not find out until the
day of the announcement. (Tr. 257–258.)
108 Jt. Exh. 4 at ¶ 57, 68, 80.
109 Id. at ¶ 41; Jt. Exh. 12(a)-(b).
110 Id. at ¶ 54.
111 Id. at ¶ 40.
112 Bruce Harris, the Company’s labor representative at Richmond,
confirmed Irvin’s credible testimony that the Company was no longer
providing MERs with insurance coverage, but rather, cash to obtain cov-
erage. (Tr. 30-32, 205–206.)
113 The parties stipulated that there are no references to the DAP Plan
or MEDCAP in any of the applicable CBAs and, therefore, the 2013
Changes are not arbitrable. (Jt. Exh. 4 at ¶¶ 60, 65, 76.)
F. Extend Health
1. The enrollment process
In August and September 2012, Extend Health mailed to
MERs a “Getting Started Guide” and “Enrollment Guide, and
conducted education sessions for potential enrollees.117 The
Guide provided information regarding available plans, listed
concerns by MERs and stated that MERs would be guaranteed
coverage during the first enrollment period. It also noted, how-
ever, that they might be rejected later for preexisting conditions
if the selected insurance provider changed its terms of cover-
age.118 Extend Health advised MERs to start this process three
months before the 2013 Changes became effective.119
The Company and Extend Health produced education sessions
in states where significant numbers of MERs resided. MERs
were informed that they would be able to use their HRA allot-
ments to choose medical and dental coverage from among ap-
proximately 75 insurance carriers through an Extend Health ben-
efit advisor. Extend Health would continue to function as claims
administrator and process all appeals. MERs were also advised
that plan premiums were likely to increase each year and there
was no guarantee MERs could continue seeing their current med-
ical or dental providers.120
After receiving the information, MERs were required to make
several telephone calls to Extend Health. MERs were asked to
provide Extend Health benefit advisors with medical, Social Se-
curity and Medicare information. Based upon that information,
benefit advisors recommended certain insurance carriers. The
new enrollment process took several months.121
Pursuant to the 2013 Changes, the Company began providing
secondary medical and dental benefits to its MERs through a tax-
exempt HRA, effective January 1, 2013. Extend Health imple-
mented the 2013 Changes by compiling lists of insurance carri-
ers and web-based summaries of insurance plans available to
MERs who met certain criteria in May and June 2013.122
Based on information from third party vendors, the Company
committed approximately $93,200,000 to MEDCAP/DAP HRA
accounts for 2013. As of May 2013, the number of HRA joint
and individual accounts established by eligible participants since
114 Id. at ¶¶ 55; Jt. Exh. 23, 34.
115 Id. at ¶¶ 56, 78–79; Jt. Exh. 23–24, 34–35.
116 Id. at ¶ 67; Jt. Exh. 28–29.
117 Id. at ¶¶ 42–43; Jt. Exhs. 13(a)-(b), 14–15.
118 Only during the initial enrollment period were MERs guaranteed
enrollment in a plan of their choice. (Id. at 8; Jt. Exh. 10(f) at 41.)
119 Palmore, vice president of Local 992, provided credible and unre-
futed testimony regarding the mechanics of the rollout of the 2013
changes. (Tr. 128.)
120 Jt. Exh. 11(f) at 4, 15, 23–27, 31.
121 The credible testimony revealed that some MERs found the process
easy, while others found it difficult to navigate, but it is not disputed that
the process of initially enrolling in a new insurer through Extend Health
took months. (Tr. 112–121, 350–351; Jt. Exh. 13(a) at 7–11.)
122 The parties stipulated to receipt of examples of companies serving
areas near each of the three plants that restricted coverage to males over
the age of 65 who were not smokers, disabled or on kidney dialysis. (Jt.
Exh. 4 at ¶¶ 44–46; Jt. Exhs. 16–18.)
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
January 2013 was 51,849. A joint account includes Company re-
tirees, survivors, and/or dependents.123
2. The new terms and conditions of coverage
The new provisions applying to MERs are contained in Ap-
pendix B of the Plan Document. In addition to the provisions al-
ready described about the enrollment process and reimbursement
through HRAs, the new plan requires MERs to submit to Extend
Health all claims for expenses by March 31 following the plan
year in which expenses are incurred. Extend Health, not the
Company, administers the reimbursement and appeals processes
for MERs, and requires them to submit more claim information
than previously required.124 Moreover, MERs no longer have
any stop-loss or annual benefit maximum through the Com-
pany.125
Legal Analysis
Section 8(a)(5) of the Act makes it unlawful for an employer
to make unilateral changes to benefits that are a mandatory sub-
ject of bargaining. NLRB v. Katz, 369 U.S. 736 (1962). An em-
ployer has a statutory duty to bargain over changes to retiree
health care coverage where bargaining unit employees may be
entitled to receive future retirement benefits as a term and con-
dition of their employment. Allied Chemical and Alkali Workers
of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 180
(1971). An employer, therefore, may not make unilateral
changes to this subject of bargaining unless the union expresses
a clear and unmistakable waiver of its right to bargain. American
Broadcasting Co., 290 NLRB 86, 88 (1988); California Pacific
Medical Center, 337 NLRB 910 (2002).
As in Case 05–CA–033461, the General Counsel once again
alleges that the Company violated Section 8(a)(5) and (1) of the
Act when it unilaterally changed MEDCAP and DAP for a par-
ticular group of bargaining unit employees. In that case, I found
the unilateral elimination of such coverage for new hires at the
Richmond plant after January 1, 2007, to be a major change and
a violation of Section 8(a)(5) and (1). In this case, the General
Counsel alleges the same violation with respect to the Com-
pany’s unilateral replacement of MEDCAP and DAP as second-
ary coverage for MERs with an annual $1400 voucher payment
toward the costs of coverage with an unknown carrier arranged
through a third-party broker. It is further alleged that the change
effectively severs the Company’s obligation to bargain over
health and dental coverage under the CBA, as the Union has no
bargaining relationship with the Extend Health.
The Company again concedes that the changes were unilateral
but asserts that the 2013 Changes are fully consistent with the
Unions’ waivers and simply continue an uninterrupted 30-year
past practice of similar changes. The Company also concedes
that the 2013 Changes changed the manner in which MERs re-
ceive benefits but asserts that they continue receiving benefits
under MEDCAP and DAP, and the Company continues funding
the benefits.
In its reply brief, the Company again stresses that the 2013
Changes altered the manner in which it provides benefits to
MERs, but did not eliminate MEDCAP or DAP, discontinue

123 Id. at ¶¶ 47–48.
124 Jt. Exh. 12(b) at 123–126.
benefits for MERs or preclude all future bargaining over retiree
medical and dental coverage. The Company also contends that
the General Counsel mischaracterized the bargaining history as-
sociated with past MEDCAP and DAP Changes, the past prac-
tice between the parties and the Unions failures to object to uni-
lateral changes.
In its reply brief, the General Counsel renews its arguments
that the Unions never negotiated over the inclusion of MEDCAP
and DAP into the CBAs and, in any event, they are no longer
referenced in any of the CBAs. Moreover, the Unions pursued
bargaining over the years and did not waive their rights relating
to MEDCAP and DAP. Lastly, the massive 2013 Changes are
vastly different from past programmatic changes of increasing
premiums and tinkering with eligibility formulas.
I. EXPRESS WAIVER
The Company’s waiver argument is premised on several
grounds: (1) the Unions agreed to participate in DAP in 1976 on
the condition that the Company retained the right to make future
changes to the plan at its discretion; (2) the Unions agreed to
participate in MEDCAP in the mid-1980’s on the condition that
the plan documents include a reservation of rights provision; and
(3) the Company has made numerous, significant and uncon-
tested unilateral changes to both plans virtually every year since
1986.
The General Counsel refuted the Company’s waiver defenses
on the following grounds: (1) the MEDCAP and DAP plan doc-
uments are not part of the CBAs; (2) the unilateral changes over
the years have been relatively minor compared to the 2013
Changes; (3) the history of information requests constitute re-
quests to bargain; (4) the waiver defense was aimed at the wrong
union in Louisville; (5) the Unions bargained over prior changes
affecting MEDCAP and DAP; (6) the 1986 Agreement at Rich-
mond did not result in a waiver; (7) there are no bargaining notes
relating to MEDCAP in Louisville or Nashville; (8) stipulations
from prior cases evidence a history of union challenges to the
Company’s right to make unilateral changes; and (9) the Unions
contested changes to BeneFlex.
A waiver occurs when a union “knowingly and voluntarily re-
linquishes its right to bargain about a matter. . . . [W]hen a union
waives its right to bargain about a particular matter, it surrenders
the opportunity to create a set of contractual rules that bind the
employer, and instead cedes full discretion to the employer on
that matter. For that reason, the courts require ‘clear and unmis-
takable’ evidence of waiver and have tended to construe waivers
narrowly.” Dept. of the Navy Marine Corps Logistics Base v.
FLRA, 962 F.2d 48, 57 (D.C. Cir.1992).
The Board has relied upon several factors in assessing whether
a clear and unmistakable waiver exists: (1) language in the col-
lective bargaining agreement, (2) the parties’ past dealings, (3)
relevant bargaining history, and (4) other bilateral changes that
may shed light on the parties’ intent. See Johnson-Bateman, 295
NLRB 180, 184–187 (1989); American Diamond Tool, 306
NLRB 570 (1992). The party asserting the waiver bears the
125 Jt. Exh. 10(g).
E.I. DU PONT DE NEMOURS AND COMPANY 27
burden of establishing the existence of the waiver. Pertec Com-
puter, 284 NLRB 810 fn. 2 (1987).
Pursuant to the CBAs, the Unions have a right to bargain on
behalf of retirees, as well as active employees. It is undisputed
that the MEDCAP and DAP Plan Documents contained manage-
ment-rights clauses making them terminable by the Company.
None of the CBAs, however, mention either plan. At Richmond,
neither MEDCAP nor DAP were ever mentioned in the CBA; at
Louisville and Nashville, the plans were once mentioned, but
were subsequently removed from the CBAs.
The Board has been hesitant to imply waivers that are not ex-
plicitly mentioned within parties’ collective-bargaining agree-
ments. In Southern Nuclear Operating Co., 348 NLRB 1344
(2006), enfd. in part, remanded in part 524 F.3d 1350 (D.C. Cir.
2008), an employer unilaterally terminated full health care cov-
erage and altered its life insurance payment policy for retirees.
The Court of Appeals rejected the employer’s contention that the
unions incorporated the benefit plans’ reservation of rights
clauses into the contract based upon a “course of conduct” based
on copies of the benefit plans provided to the unions and incor-
porated into the collective-bargaining agreements. Id. at 1359. A
similar result is found in Mississippi Power Co., 332 NLRB 530
(2000), enfd. in part 284 F.3d 605 (5th Cir. 2002), where a man-
agement-rights provision contained in the employee benefits
plan, but not the collective-bargaining agreement, was insuffi-
cient to establish a waiver of the union’s bargaining rights.
The Board’s recent decision in Omaha World-Herald, 357
NLRB 1870, 1870–1872 (2011) does not support a different re-
sult. In that case, the Board concluded that unilateral changes to
employees’ pension plans were lawful but found that unilateral
changes to their 401K savings plan were unlawful. As to the pen-
sion plan, it concluded that the union waived its right to bargain
based on “an amalgam of factors.” Under the contract, the em-
ployer was required to “advise the Union of proposed changes
[to the pension plan] and meet to discuss and explain changes if
requested.” However, the clause coexisted with other contract
provisions referencing the plan, which included a reservation of
rights clause, and expressly excluding changes to the plan from
the grievance and arbitration procedure because the plans cov-
ered all employees, not just represented ones. Moreover, the un-
ion neither objected nor requested bargaining regarding a simi-
lar, prior unilateral change by the employer during the term of
the contract. The prior change to the pension plan was a signifi-
cant one—the removal of all employees under age 50 from the
plan. Id. at 3.
Significantly, the Board also noted that its conclusion was not
inconsistent with Southern Nuclear Operating Co. and other rel-
evant decisions. Id. at fn. 8 (citing Amoco Chemical Co., 328
NLRB 1220, 1222 fn. 6 (1999), enf. denied 217 F.3d 869 (D.C.
Cir. 2000); Register-Guard, 339 NLRB 353, 356 (2003); and
Johnson-Bateman Co., 295 NLRB 180, 188 (1989)).
Moreover, the Board’s opposite conclusion in Omaha World-
Herald, that the employer’s unilateral change to the 401(k) plan
after the contract expired was unlawful, is also consistent with
the facts here. The Board’s rationale for the violation rested on
well-settled precedent precluding waiver of the right to bargain
where unilateral action relies on expired contract or referenced
plan language, and there is no evidence that the parties intended
that the waiver provision continue in force beyond the contract’s
expiration. Id. at 3–4 (citing E. I. du Pont De Nemours, Louisville
Works, 355 NLRB 1084, 1085 (2010); Paul Mueller Co., 332
NLRB 312, 313 (2000); and Ironton Publications, 321 NLRB
1048, 1048 (1996)).
Notwithstanding the absence of an express waiver in the
CBAs, the Company contends that the Unions waived their
rights to bargain over these changes in clear and unmistakable
terms, as evidenced by the bargaining history surrounding the
CBAs and the Company’s well-established past practice of uni-
laterally changing plan document terms.
Waiver of a statutory right may be evidenced by bargaining
history, as the Company contends, but the Board requires the
matter at issue to have been “fully discussed” and “consciously
explored” during negotiations. Davies Medical Center, 303
NLRB 195, 204 (1991). Furthermore, the Company must
demonstrate that the Unions consciously yielded or clearly and
unmistakably waived their interests in the matter. Rockwell In-
ternational Corp., 260 NLRB 1346, 1347 (1982). Failure to
mention a mandatory subject of bargaining does not constitute a
waiver of the right to bargain; rather, the Board requires “a con-
scious relinquishment by the union, clearly intended and ex-
pressed.” Elizabethtown Water Co., 234 NLRB 318, 320 (1978),
citing Perkins Machine Co., 141 NLRB 98, 102 (1963).
In applying the “fully discussed” and “consciously explored”
standard in Davies, the Board refused to find a waiver of the right
to information even though the union had not previously re-
quested information prior to preliminary bargaining sessions. In
arriving at that conclusion, the Board noted the absence of evi-
dence establishing that the Union clearly relinquished its statu-
tory right to the production of relevant information. The Board
followed a similar standard in Reece Corp., 294 NLRB 448
(1989). In that case, it found no waiver because the employer
expressed a belief that the contract did not allow it to transfer
work without bargaining. See also General Electric Co., 296
NLRB 844 (1989) (neither the language of the employer’s bar-
gaining notes or its subsequent bargaining history suggested that
the Union clearly intended and expressly bargained away its stat-
utory right).
At Richmond, there was discussion, but Local 992 never
agreed to incorporate a management-rights provision into the
contract. At Louisville and Nashville, there are no bargaining
notes relating to the inclusion of a management-rights provision
in MEDCAP or DAP. Moreover, Local 788 is not bound to any
alleged waiver by its predecessor union even though it adopted
the predecessor’s CBA. See Eugene Iovine, Inc., 356 NLRB
1056 (2011); NLRB v. Burns Int’l Servs., Inc., 406 U.S. 272, 284
fn. 8 (1972); American Seating, 106 NLRB 250 (1953).
Based on the foregoing, the language of the CBAs, especially
when construed in conjunction with the parties’ past dealings and
bargaining history, fail to reveal the existence of any express
waivers by the Unions permitting the Company to unilaterally
eliminate MEDCAP and DAP as the secondary coverage for
MERs and replace them with an annual payment into an HSA to
be administered entirely by a third party broker.
II. IMPLIED WAIVER
Notwithstanding the absence of an express waiver, the
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Company again advances several additional theories demonstrat-
ing that the Unions waived their objections to the unilateral re-
placement of MEDAP and DAP for MERs—a general waiver
based on past practice and the existence of a longstanding prac-
tice as the continuation of the status quo. The General Counsel
denies the applicability of these theories and relies on the argu-
ment that the changes were material and more substantial than
any unilateral changes implemented over the past 20 years.
A. Waiver Based on Past Practice
The Company’s alternative theory is premised on the concept
that its 30 years of imposing unilateral changes to MEDCAP and
DAP terms of coverage constitutes a waiver by all three Unions.
A waiver may be inferred from extrinsic evidence of contract ne-
gotiations and/or past practice. Mt. Clemons General Hospital,
344 NLRB 450, 460 (2005). See also Litton Microwave Cooking
Products v. NLRB, 868 F.2d 854, 858 (6th Cir. 1989) (waiver
where management rights clause was included in contract and
explicitly referred to layoffs and production methods, coupled
with history of uncontested work relocation and layoffs); Cali-
fornia Pacific Medical Center, 337 NLRB 910, 914 (2002)
(waiver based on management rights clause giving employer the
right to lay off employees whenever deemed necessary, again
coupled with a history of uncontested actions and absent requests
to bargain).
In Mt. Clemons General Hospital, supra at 460, an employer
made unilateral changes to a tax shelter annuity program that
downsized the program from five providers to one. The change
was not explicitly authorized in the contract but referenced only
in a general waiver clause. As such, the Board found that clause
insufficient to constitute an express waiver for specific terms not
listed in the contract. Nevertheless, the Board recognized the ex-
istence of an implied waiver from the employer’s 20-year record
of making similar unilateral changes without any requests by the
union to bargain over them.
In contrast to Mt. Clemons, Litton and California Pacific,
there is a history of fluctuations in the bargaining relationship
between all three Unions and the Company—unilateral changes
without requests to bargain, as well as changes followed by re-
quests for information and/or requests to bargain. The instances
in which the Company unilaterally changed benefit terms with-
out requests to bargain outnumber the instances in which the Un-
ion requested information or sought to bargain. Nevertheless, un-
der the circumstances, the transactional history makes it unlikely
that the Unions waived their rights to bargain over the elimina-
tion of retiree health benefits.
Moreover, Mt. Clemons, Litton and California Pacific did not
include unilateral changes that substantially deviated from past
practices. Both Mt. Clemons and Litton involved disputes arising
from unilateral changes such as layoffs that the companies im-
plemented frequently prior to the filing of charges. Mt. Clemons
involved the downsizing of an annuity program, not its total and
irrevocable termination. None of these changes strayed consid-
erably from the companies’ similar past practices, which they
implemented openly and with the acquiescence of their respec-
tive unions.
B. Longstanding Practice as Continuation of the Status Quo
The Company also contends that the 2013 Changes were
merely part of the status quo of a longstanding practice that
spanned a 30-year period of unilateral changes to MEDCAP and
DAP. The General Counsel again responds that these changes
were scattered among numerous information requests over the
years that constituted requests for bargaining and counter any
semblance of a well-established past practice.
A unilateral change made pursuant to longstanding practice is
essentially a continuation of the status quo and not a violation of
Section 8(a)(5). Courier-Journal, 342 NLRB 1093, 1095 (2004)
(unilateral increase of health premium lawful where contract
gave employer the right to modify or terminate the health care
plan, coupled with a long history of similar unilateral changes).
Again, however, the Company failed to meet its burden in es-
tablishing that the Unions expressed a clear and unmistakable
waiver of their rights to bargain. When the Company’s history of
unilateral changes to the health plan deductibles, premiums, eli-
gibility and other terms are considered in conjunction with many
Union requests for information, its past practice theory fails to
establish a status quo that meets the requirements of Courier-
Journal. Moreover, the Company’s unilateral replacement of
MEDCAP and DAP for MERs with a voucher plan is far from a
continuation of the status quo.
C. Material Departure from Past Practice
The Company’s reliance on a long history of changes to
MEDCAP and DAP is also undermined by the materiality of the
2013 changes. An employer violates Section 8(a)(5) if the uni-
lateral change at issue constitutes a material departure from well-
established past practice. Caterpillar, Inc., 355 NLRB 521, 523
(2010), enfd. mem. _ F.3d _, 2011 WL 2555757 (D.C. Cir. May
31, 2011)
In Caterpillar, the Board found that an employer’s unilateral
implementation of a generic-first prescription drugs program vi-
olated Section 8(a)(5). In addition to rejecting the employer’s
contention that it had a longstanding practice of unilaterally im-
plementing changes to its health care plan, there was no “thread
of similarity running through and linking the several types of
change at issue.” The Board distinguished three types of past
change—preauthorization requirements, drug quantity limits and
step therapies—as dissimilar to each other, as well as generic-
first prescriptions. Moreover, the implementation of “generic
first” represented a material departure from that past practice, as
past changes were limited in scope. Lastly, the union’s acquies-
cence to past unilateral changes did “not operate as a waiver of
its right to bargain over such changes for all time.” Id. at 521–
523. (quoting Owens-Corning Fiberglas, 282 NLRB 609
(1987)).
In contrast to the employers in Mt. Clemons General Hospital,
Litton, and Courier-Journal, the Company has failed to establish
that the Unions waived their rights to bargain based on the bar-
gaining history and past practice. Furthermore, based on the Cat-
erpillar holding, the Company’s termination of MEDCAP and
DAP as secondary insurance to MERs, replacing them with a
permanent annual voucher payment and referring MERs to a
third party to procure some sort of health care and dental cover-
age, constituted a material departure from any past practices that
E.I. DU PONT DE NEMOURS AND COMPANY 29
Company may have established. Instead of simply changing pre-
mium rates, deductibles, eligibility and scope of coverage, the
2013 Changes removed negotiations and discussions of potential
health and dental insurance plans from the bargaining table.
The Company stresses that the previous $1,500,000 annual
benefit maximum, a major bone of contention, was not elimi-
nated because, in theory, there might be an insurance provider
on Extend Health’s list willing to provide such coverage. More-
over, the new procedure allows each retiree to shop for the cov-
erage most beneficial to him or her, as opposed to being locked
into one negotiated on behalf of thousands of beneficiaries.
While such arguments are plausible, it is far from certain that an
individual will be able to procure as beneficial a coverage as
could be negotiated by an employer on behalf of thousands of
beneficiaries. The answers presumably lie in the information re-
quest and bargaining process that was sidestepped here.
Accordingly, the Company failed to carry its burden in estab-
lishing an implied waiver through its bargaining history or past
practice, and its elimination of replacement of MEDCAP and
DAP with an annual $1400 voucher payment to a third-party in-
surance broker constitutes a material departure from past prac-
tice.
III. EQUITABLE ESTOPPEL
The Company also argues that the Union is equitably estopped
from demanding to bargain. A union’s constant acquiescence to
an employer’s unilateral action for sustained periods of time can
equitably estop a union from demanding bargaining on that sub-
ject. Manitowec Ice Co., 344 NLRB 1222 (2005); Tucker Steel
Corp., 134 NLRB 323, 333 (1961). The General Counsel con-
tends, however, that a union’s failure to request bargaining on a
topic does not constitute a clear and unmistakable waiver of its
right to bargain on that topic at a later time. See FirstEnergy
Generation Corp., 358 NLRB 842, 842 (2012), citing Caterpil-
lar, Inc., supra at 523 (union’s silent acquiescence to prior
changes in retiree benefits does not surrender future rights to bar-
gain over changes); see also Brewers and Malsters, 342 NLRB
560 (2004), enfd. 414 F.3d 36, 45 (D.C. Cir. 2005) (union’s
waiver of right to bargain over prior changes does not waive right
to bargain over future changes).
Unlike the union in Manitowoc, which was equitably estopped
from bargaining due to a history of unilateral changes without
bargaining requests, information requests, or other objections
from the union, the Unions here made numerous information re-
quests throughout the years, to which the Company typically ac-
quiesced. Information requests sent to employers constitute re-
quests for bargaining. Eldorado, Inc., 335 NLRB 952, 954
(2001). Moreover, the Company’s bargaining notes indicate that
the Company had no intention of terminating MEDCAP and
DAP and replacing them with an annual voucher payment.
The record establishes that the Company itself considered uni-
lateral changes to the status quo insofar as they occurred within
the framework of an existing future retirement benefits plan. The
bargaining history demonstrates that even the Company was op-
erating under the assumption that a retirement healthcare and
dental plan would always exist. The Company’s history of im-
posing unilateral changes to the terms of the coverage is under-
standable within this framework. However, replacing the entire
retiree healthcare and dental program far exceeds the expecta-
tions of the parties based on a 30-year bargaining record.
In conclusion, the 2013 Changes were a material departure
from prior changes. Historical changes affecting MERs never
even remotely suggested that the Company would ever replace
their defined health and dental insurance benefits with an annual
voucher payment to be administered by a third-party broker, es-
sentially requiring MERs to fend for themselves in the insurance
marketplace. Indeed, the record demonstrates, and the Company
stresses, that participation in its corporate-wide plans has always
been voluntary and each of the Unions has always been free to
propose site-specific alternative benefit medical and dental ben-
efit plans. It also insists that it has been willing to bargain over
locally based-proposals and would do so again if the Unions pro-
posed alternative secondary coverage plans. That is a hollow
claim by the Company, raised for the first time in its brief, given
that Locals 593, 788, and 992 objected to the 2013 Changes in
October 2012 and demanded bargaining. The Company declined
or ignored those requests which, in accordance with past prac-
tice, might have produced counterproposals by the Unions for
bargaining over alternative site-specific plans.
Accordingly, the Company’s unilateral implementation of the
2013 Changes without first offering Locals 593, 788, and 992 the
opportunity to bargain violated Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
1. E. I. DuPont de Nemours and Company is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Charging Parties, Ampthill Rayon Workers, Inc., Local
992, International Brotherhood of Dupont Workers, Freon
Craftsman Union, Local 788, International Brotherhood of
Dupont Workers, and International Brotherhood Of Dupont
Workers (IBDW), Local 593, Old Hickory Employees Council,
are labor organizations within the meaning of Section 2(5) of the
Act and are the recognized collective-bargaining representatives
of bargaining units composed of the production, maintenance,
clerical, technical, and office employees employed by the Com-
pany at its facilities in Richmond, Virginia, Louisville, Ken-
tucky, and Nashville, Tennessee.
3. On January 1, 2013, the Company violated Section 8(a)(5)
and (1) by replacing secondary health and dental insurance to its
Medicare-eligible retirees with an annual voucher toward the
procurement of some version of such coverage from among
choices provided by a third party broker, and failing to bargain
over these changes upon request by Locals 593, 788, and 992.
4. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Company has violated Section 8(a)(5)
of the Act by failing to bargain with Locals 593, 788, and 992
concerning the changing of secondary health and dental insur-
ance to its Medicare-eligible retirees, I shall order it to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act, including the posting of an
appropriate notice to employees. Specifically, I shall order the
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Company to rescind, for Medicare-eligible retirees, the change
in its retiree healthcare and dental program, implemented Janu-
ary 1, 2013, providing them with an annual voucher to procure
some version of such coverage from among the choices provided
by a third party broker, and restore MEDCAP and DAP insur-
ance coverage for Medicare-eligible retirees to the same terms
and conditions as they existing on December 31, 2012. The
Company shall, on demand by Locals 593, 788, and 992, bargain
in good faith regarding any Company proposal to change health
and dental care benefits for Medicare-eligible retirees.
In the event that this Remedy is not adhered to, bargaining unit
members who are Medicare-eligible retirees, over time, will be
adversely affected by the replacement of their current secondary
health and dental coverage with an annual $1500 voucher into a
Health Savings Account to the extent that their labor representa-
tives will be unable to bargain with the Company over the terms
and conditions of coverage. In that case, the Company shall
make whole its Medicare-eligible retirees for any loss of health
or dental care benefits suffered as a result of the Company’s un-
lawful modifications. Payments for lost benefits are to be com-
puted in the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in-
terest, as prescribed in New Horizons, 283 NLRB 1173 (1987),
and compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended126
ORDER
The Respondent, E. I. DuPont de Nemours and Company,
Wilmington, Delaware, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unilaterally announcing and changing employees’ retire-
ment health and dental benefits.
(b) Making material, substantial and significant changes to
secondary retirement health and dental benefits of unit employ-
ees without first notifying the Union and affording it an oppor-
tunity to bargain over such changes and their effects.
(c) In any like or related manner interfering with, restraining,
or coercing 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) Rescind the unilateral material changes to retiree benefits
implemented on January 1, 2013, as they relate to the replace-
ment of secondary health and dental benefits for Medicare-eligi-
ble retirees with an annual voucher payment into a Health Sav-
ings Account for the procurement of secondary health and dental
coverage from providers on a list supplied by a third-party insur-
ance broker.
(b) Meet and bargain in good faith with Locals 593, 788, and
992, upon request, about the MEDCAP Plans and DAP Plans and
if an agreement is reached regarding those plans, reduce the
agreements to writing and execute them.

126 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
(c) Restore the benefits for the unit employees in the follow-
ing bargaining units under the MEDCAP and DAP Plans that
existed prior to the unlawful unilateral changes implemented on
January 1, 2013:
Local 992 Medicare-eligible retirees formerly employed by the
Company as:
All non-exempt monthly salary roll clerical, technical, and of-
fice employees of the Spruance Fibers Plant located at the
Ampthill, Chesterfield County, Virginia plant included within
the unit appropriate for collective bargaining purposes certified
in an order of the National Labor Relations Board in Case
Number 5-R-2835, bearing date of December 26, 1946; but ex-
cluding all hourly wage roll production and maintenance em-
ployees, nurses, security officers, Secretary/Administrative As-
sistant, Salary Roll, personnel Services Personnel, Contract
Administration clerks, Systems Technicians, Video Specialist,
employees on the no-service roll, student operators, student en-
gineers, co-op students, and all supervisory employees with the
authority to hire, promote, discharge, discipline or otherwise
effect changes in the status of employees or effectively recom-
mend such action.
All production, maintenance, service and Plant technical
hourly wage roll employees at the Spruance Fibers Plant lo-
cated at Ampthill, Chesterfield County, Virginia, included
within the union 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 Jan-
uary 31, 1947; but excluding all employees classified as in-
structors, instructresses, security officers, Limited Service Em-
ployees, employees when working as relief supervisors and su-
pervisors-in-training, and all supervisory employees set forth
in said cases with the authority to hire, promote, discharge, dis-
cipline or otherwise effect changes in the status of employees
or effectively recommend such action.
Local 593 Medicare-eligible retirees formerly employed by the
Company as:
The hourly wage roll production, maintenance, and power
house employees at the [Old Hickory, Nashville, Tennessee]
Plant, including instructors, but excluding guards, firemen, fire
inspectors, office, clerical, salaried technical, and professional
employees, and relief supervisors who serve in that capacity
either regularly or for substantial periods of time during the
course of the year, and all other supervisors as defined in the
Labor-management Relations Act.
Local 788 Medicare-eligible retirees formerly employed by the
Company as:
All employees of the E. I. Du Pont De Nemours and Company
included within the unit appropriate for collective bargaining
purposes established in an order of the National Labor Rela-
tions Board in Case No. 9-RC-18290 bearing date of May 14,
2010; viz., all employees of E. I. Du Pont De Nemours and
Company at its Louisville Works, Louisville, Kentucky, in-
cluding powerhouse and refrigeration plant employees, chief
Order 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.
E.I. DU PONT DE NEMOURS AND COMPANY 31
operators, shift leaders and fire department employees, but ex-
cluding all office and clerical employees, chemical supervisors,
technical engineers, assistant technical engineers, draftsmen,
chemists, nurses and hospital technicians, general foremen,
foremen , fire chief, guards, and all other supervisors and pro-
fessional employees as defined in the National Labor Relations
Act as amended.
(d) Make unit employees whole by reimbursing them, with
interest, for any loss of benefits suffered and additional expenses
suffered as a result of the unilateral changes to the MEDCAP
Plans and DAP Plans and maintain those terms in effect until the
parties bargain to a new agreement, or a valid impasse, or until
the Union has agreed to changes.
(e) Within 14 days after service by the Region, post at its fa-
cility in Ampthill, Chesterfield County, Virginia, copies of the
attached notice marked “Appendix A.”127 Copies of the notice,
on forms provided by the Regional Director for Region 5, after
being signed by the Company’s authorized representative, shall
be posted by the Company and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical post-
ing of paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet site,
and/or other electronic means as the Company customarily com-
municates with its employees and retirees by such means. Rea-
sonable steps shall be taken by the Company to ensure that the
notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the
Company has gone out of business or closed the facility involved
in these proceedings, it shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees.
(f) Within 14 days after service by the Region, post at its fa-
cility in Nashville, Tennessee, copies of the attached notice
marked “Appendix B.” Copies of the notice, on forms provided
by the Regional Director for Region 26, after being signed by the
Company’s authorized representative, shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other elec-
tronic means as the Company customarily communicates with its
employees and retirees by such means. Reasonable steps shall be
taken by the Company to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Company has gone
out of business or closed the facility involved in these proceed-
ings, the Company shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former employ-
ees employed by the Company.
(g) Within 14 days after service by the Region, post at its fa-
cility in Louisville, Kentucky, copies of the attached notice
marked “Appendix C.” Copies of the notice, on forms provided

127 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
by the Regional Director for Region 9 after being signed by the
Company’s authorized representative, shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other elec-
tronic means as the Company customarily communicates with its
employees and retirees by such means. Reasonable steps shall be
taken by the Company to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Company has gone
out of business or closed the facility involved in these proceed-
ings, the Company shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former employ-
ees employed by the Company.
Dated, Washington, D.C. December 16, 2013
APPENDIX A
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.
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 and in
good faith with AMPTHILL RAYON WORKERS, INC.,
LOCAL 992, INTERNATIONAL BROTHERHOOD OF
DUPONT WORKERS (the Union), as the exclusive representa-
tive of our employees in the following collective-bargaining
units:
All non-exempt monthly salary roll clerical, technical, and of-
fice employees of the Spruance Fibers Plant located at the
Ampthill, Chesterfield County, Virginia plant included within
the unit appropriate for collective bargaining purposes certified
in an order of the National Labor Relations Board in Case
Number 5-R-2835, bearing date of December 26, 1946; but ex-
cluding all hourly wage roll production and maintenance em-
ployees, nurses, security officers, Secretary/Administrative As-
sistant, Salary Roll, personnel Services Personnel, Contract
Administration clerks, Systems Technicians, Video Specialist,
employees on the no-service roll, student operators, student en-
gineers, co-op students, and all supervisory employees with the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
authority to hire, promote, discharge, discipline or otherwise
effect changes in the status of employees or effectively recom-
mend such action.
All production, maintenance, service and Plant technical
hourly wage roll employees at the Spruance Fibers Plant lo-
cated at Ampthill, Chesterfield County, Virginia, included
within the union 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 Jan-
uary 31, 1947; but excluding all employees classified as in-
structors, instructresses, security officers, Limited Service Em-
ployees, employees when working as relief supervisors and su-
pervisors-in-training, and all supervisory employees set forth
in said cases with the authority to hire, promote, discharge, dis-
cipline or otherwise effect changes in the status of employees
or effectively recommend such action.
WE WILL NOT make unilateral changes to employees’
MEDCAP Plans and DAP Plans without first notifying Ampthill
Rayon Workers, Inc., Local 992, International Brotherhood of
DuPont Workers, and bargaining about any proposed changes to
these plans.
WE WILL NOT in any like or related manner, interfere with, re-
strain, or coerce our employees in the exercise of their rights as
guaranteed in Section 7 of the Act.
WE WILL, on request of Ampthill Rayon Workers, Inc., Local
992, International Brotherhood of DuPont Workers, restore the
unit employees’ benefits under the MEDCAP Plans and DAP
Plans to the terms that existed prior to the unlawful unilateral
changes that were implemented on January 1, 2013, and maintain
those terms in effect until the parties have bargained to a new
agreement, or a valid impasse, or until the Union has agreed to
changes.
WE WILL meet and bargain in good faith with the Ampthill
Rayon Workers, Inc., Local 992, International Brotherhood of
DuPont Workers, upon request, about the MEDCAP Plans and
DAP Plans and should we reach agreement regarding those
plans, we will reduce the agreements to writing and execute
them.
WE WILL make unit employees whole by reimbursing them,
with interest, for the loss of any benefits and additional expenses
that they may have suffered as a result of the unilateral changes
to the MEDCAP Plans and DAP Plans.
E.I. DU PONT DE NEMOURS AND COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05-CA-090984 or 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.
APPENDIX B
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.
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 and in
good faith with INTERNATIONAL BROTHERHOOD OF
DUPONT WORKERS (IBDW), LOCAL 593, OLD HICKORY
EMPLOYEES COUNCIL (the Union), as the exclusive repre-
sentative of our employees in the following collective-bargain-
ing units:
The hourly wage roll production, maintenance, and power
house employees at the [Old Hickory, Nashville, Tennessee]
Plant, including instructors, but excluding guards, firemen, fire
inspectors, office, clerical, salaried technical, and professional
employees, and relief supervisors who serve in that capacity
either regularly or for substantial periods of time during the
course of the year, and all other supervisors as defined in the
Labor-management Relations Act.
WE WILL NOT make unilateral changes to employees’
MEDCAP Plans and DAP Plans without first notifying
INTERNATIONAL BROTHERHOOD OF DUPONT
WORKERS (IBDW), LOCAL 593, OLD HICKORY
EMPLOYEES COUNCIL, and bargaining about any proposed
changes to these plans.
WE WILL NOT in any like or related manner, interfere with, re-
strain, or coerce our employees in the exercise of their rights as
guaranteed in Section 7 of the Act.
WE WILL, on request of INTERNATIONAL
BROTHERHOOD OF DUPONT WORKERS (IBDW), LOCAL
593, OLD HICKORY EMPLOYEES COUNCIL, restore the
unit employees’ benefits under the MEDCAP Plans and DAP
Plans to the terms that existed prior to the unlawful unilateral
changes that were implemented on January 1, 2013, and maintain
E.I. DU PONT DE NEMOURS AND COMPANY 33
those terms in effect until the parties have bargained to a new
agreement, or a valid impasse, or until the Union has agreed to
changes.
WE WILL meet and bargain in good faith with the
INTERNATIONAL BROTHERHOOD OF DUPONT
WORKERS (IBDW), LOCAL 593, OLD HICKORY
EMPLOYEES COUNCIL, upon request, about the MEDCAP
Plans and DAP Plans and should we reach agreement regarding
those plans, we will reduce the agreements to writing and exe-
cute them.
WE WILL make unit employees whole by reimbursing them,
with interest, for the loss of any benefits and additional expenses
that they may have suffered as a result of the unilateral changes
to the MEDCAP Plans and DAP Plans.
E.I. DU PONT DE NEMOURS AND COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05-CA-090984 or 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.
APPENDIX C
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.
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 and in
good faith with FREON CRAFTSMAN UNION, LOCAL 788,
INTERNATIONAL BROTHERHOOD OF DUPONT
WORKERS (the Union), as the exclusive representative of our
employees in the following collective-bargaining units:
All employees of the E. I. Du Pont De Nemours and Company
included within the unit appropriate for collective bargaining
purposes established in an order of the National Labor Rela-
tions Board in Case No. 9-RC-18290 bearing date of May 14,
2010; viz., all employees of E. I. Du Pont De Nemours and
Company at its Louisville Works, Louisville, Kentucky, in-
cluding powerhouse and refrigeration plant employees, chief
operators, shift leaders and fire department employees, but ex-
cluding all office and clerical employees, chemical supervisors,
technical engineers, assistant technical engineers, draftsmen,
chemists, nurses and hospital technicians, general foremen,
foremen , fire chief, guards, and all other supervisors and pro-
fessional employees as defined in the National Labor Relations
Act as amended.
WE WILL NOT make unilateral changes to employees’
MEDCAP Plans and DAP Plans without first notifying FREON
CRAFTSMAN UNION, LOCAL 788, INTERNATIONAL
BROTHERHOOD OF DUPONT WORKERS, and bargaining
about any proposed changes to these plans.
WE WILL NOT in any like or related manner, interfere with, re-
strain, or coerce our employees in the exercise of their rights as
guaranteed in Section 7 of the Act.
WE WILL, on request of FREON CRAFTSMAN UNION,
LOCAL 788, INTERNATIONAL BROTHERHOOD OF
DUPONT WORKERS, restore the unit employees’ benefits un-
der the MEDCAP Plans and DAP Plans to the terms that existed
prior to the unlawful unilateral changes that were implemented
on January 1, 2013, and maintain those terms in effect until the
parties have bargained to a new agreement, or a valid impasse,
or until the Union has agreed to changes.
WE WILL meet and bargain in good faith with the FREON
CRAFTSMAN UNION, LOCAL 788, INTERNATIONAL
BROTHERHOOD OF DUPONT WORKERS, upon request,
about the MEDCAP Plans and DAP Plans and should we reach
agreement regarding those plans, we will reduce the agreements
to writing and execute them.
WE WILL make unit employees whole by reimbursing them,
with interest, for the loss of any benefits and additional expenses
that they may have suffered as a result of the unilateral changes
to the MEDCAP Plans and DAP Plans.
E.I. DU PONT DE NEMOURS AND COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05-CA-090984 or 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.