E.I. Dupont De Nemours & Co.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 1096 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 177
1096
E.I. DuPont de Nemours and Company and United
Steel, Paper and Forestry, Rubber, Manufactur-
ing, Energy, Allied Industrial and Service
Workers International Union (USW) and its Lo-
cal 4–786. Case 4–CA–33620
August 27, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On December 23, 2005, Administrative Law Judge
Paul Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and the Charging Party filed answering briefs,
and the Respondent filed a reply brief.1
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, findings, and conclusions and
to adopt his recommended Order as modified.
In finding that the Respondent’s unilateral changes to
its benefits plan violated Section 8(a)(5) and (1), the
judge properly rejected the Respondent’s argument that
the changes were simply a continuation of its past prac-
tice. The Respondent relied on the Courier-Journal
cases, 342 NLRB 1093 (2004), and 342 NLRB 1148
(2004).2 In those cases, the Board found that the em-
ployer’s unilateral changes to employees’ health care
premiums during a hiatus between contracts were lawful
because the employer demonstrated a past practice of
making such changes both when a contract was in effect
and during hiatus periods. As the judge explained, how-
ever, the Respondent’s asserted past practice in the in-
stant case was limited to changes made at times when the
parties’ contract and its management-rights provision,
which authorized the changes, were in effect. As a re-
sult, the judge properly found that the Courier-Journal
cases were inapposite. Here, because the Respondent’s

1 On May 5, 2006, the Respondent filed a letter with the Board call-
ing our attention to St. Mary’s Hospital of Blue Springs, 346 NLRB 776
(2006), enfd. 426 F.3d 455 (1st Cir. 2005). The General Counsel and
the Charging Party each filed a letter in response.
2 In the decision we also issue today in E.I. DuPont de Nemours,
Louisville Works, 355 NLRB 176 fn. 5 (2010) (Louisville Works), re-
solving a similar issue arising at a different facility operated by Re-
spondent, we explain why extending the holding in the Courier-Journal
cases to this situation would conflict with settled law and undermine
established principles of collective bargaining. In addition, as we also
explain in the companion case, the Courier-Journal cases are in tension
with other lines of Board precedent. Nevertheless, because the judge
properly found that the Courier-Journal cases are distinguishable, we
need not reconsider the holdings of those cases at the present time.
prior changes do not establish a past practice of changes
implemented during a hiatus, the unilateral changes at
issue violated the Act.
Our dissenting colleague reiterates the arguments he
advances in the companion case, Louisville Works, supra.
We reject his view here, for the reasons explained in
Louisville Works.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, E.I. DuPont de Nemours and
Company, Edge Moor, Delaware, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) On request of the Union, restore the unit employ-
ees’ benefits under the Beneflex package of benefit plans
to the terms that existed prior to the unlawful unilateral
changes that were implemented on January 1, 2005, and
maintain those terms in effect until the parties have bar-
gained to a new agreement or a valid impasse, or until
the Union has agreed to changes.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER SCHAUMBER, dissenting.
In a companion decision issued today, E.I. DuPont de
Nemours, Louisville Works, 355 NLRB 1098 (2010),
(Louisville Works), I set out at length my reasoning why
I would dismiss the complaint in that proceeding alleging
that the Respondent violated Section 8(a)(5) and (1) by
unilaterally changing certain aspects of unit employees’
benefits. For the reasons expressed there, and here, I
would likewise dismiss the complaint in this case alleg-
ing that the Respondent violated Section 8(a)(5) and (1)
of the Act by making unilateral changes to the benefits of
unit employees on January 1, 2005, following the expira-
tion of the parties’ collective-bargaining agreement.
Facts
The Union has represented the production and mainte-
nance employees at the Respondent’s Edge Moor, Dela-
ware facility for many decades. Over the years, the Re-
spondent and the Union were parties to various collec-
tive-bargaining agreements, the most recent of which ran
from June 1, 2000, until May 31, 2003, and was extended
for an additional year until May 31, 2004. At the time of
the hearing, in September 2005, the parties had not en-
tered into a successor agreement.
The Respondent’s Beneflex Flexible Benefits Plan
(Beneflex Plan) is a comprehensive, corporatewide wel-
fare benefit plan that provides a variety of benefit op-
E.I. DUPONT DE NEMOURS & CO. 1097
tions, including healthcare, dental, and vision coverage,
and life insurance. The Respondent provides these bene-
fits to employees at all of its domestic locations, includ-
ing to the unit employees at the Edge Moor facility. Ap-
proximately 60,000 employees—both union and nonun-
ion—receive benefits under the Beneflex Plan. The
Beneflex Medical Care Plan is a self-insured medical
care option encompassed within the Beneflex Plan.1
Since the Plans’ inceptions, both the Beneflex Plan and
the Beneflex Medical Care Plan documents have con-
tained an express and specific reservation of the Respon-
dent’s right to change either program in its sole discre-
tion. The “reservation of rights” provision in the Bene-
flex Plan documents states:

The Company reserves the sole right to change or dis-
continue this Plan in its discretion provided, however,
that any change in price or level of coverage shall be
announced at the time of annual enrollment and shall
not be changed during a Plan Year unless coverage
provided by an independent, third-party provider is sig-
nificantly curtailed or decreased during the Plan Year.

The Beneflex Plan was implemented at the Edge Moor
plant on January 1, 1994. Prior to that, the parties exe-
cuted a memorandum of understanding superseding the
benefits language in the existing collective-bargaining
agreement and memorializing the Union’s agreement to
be bound by the terms stated in the Beneflex documents.
During the 1993 negotiations over the implementation of
the Beneflex Plan, the Union agreed that, consistent with
the terms of the Beneflex Plan, the Respondent reserved
the right to modify the Plan without bargaining with the
Union, with the understanding that any such modifica-
tions would be made on a U.S. regionwide basis. The
2000–2004 collective-bargaining agreement indicated
that the employees’ benefits were being provided pursu-
ant to “all terms and conditions” of the Beneflex Plan.
From 1995 to 2004, the Respondent made annual
changes to the Beneflex Plan. These changes were im-
plemented uniformly at all of the Respondent’s U.S. sites
on January 1 each year, and, in each of these years, the
changes took place while a collective-bargaining agree-
ment covering the bargaining unit was in effect. Some
changes occurred almost every year, while others were
made only once or periodically during this time. The
Respondent did not offer to negotiate over the annual
changes, nor did the Union seek to bargain over them or
raise any other objection.

1 All references to the Beneflex Plan include the Beneflex Medical
Care Plan, unless otherwise indicated.
In the spring of 2004, the parties commenced negotia-
tions for a successor collective-bargaining agreement. In
the fall of 2004, the Respondent—consistent with its
practice in prior years—presented the Union with a sum-
mary of the changes for the Beneflex Plan for 2005. The
Union objected to the proposed changes and requested
bargaining, which the parties did. On January 1, 2005,
the Respondent implemented changes to the Beneflex
Plan.
Judge’s Decision
The judge found a violation in the Respondent’s Janu-
ary 1, 2005 changes and rejected the Respondent’s de-
fense that it was privileged to make the changes to the
Beneflex Plan. The judge reasoned, among other things,
that the 2000–2004 collective-bargaining agreement in-
corporated the Beneflex Plan, and the “reservation of
rights” provision in the Beneflex Plan was a manage-
ment-rights provision. Thus, the judge found that the
Union waived its right to bargain over changes to the
Beneflex Plan during the contract’s term, but that there
was no evidence that the parties had intended the con-
tractual waiver to survive the expiration of the collective-
bargaining agreement. Thus, he concluded that the Janu-
ary 1, 2005 unilateral changes to the Beneflex Plan were
not permitted by the “reservation of rights” clause and
were unlawful.
Analysis
For the reasons discussed below and in Louisville
Works, supra, I find that the Respondent’s modifications
to the Beneflex Plan on January 1, 2005, did not alter the
status quo, and thus the Respondent did not violate Sec-
tion 8(a)(5). During the 1993 negotiations over the im-
plementation of the Beneflex Plan at Edge Moor, the
Union expressly accepted the Beneflex Plan in its en-
tirety, and it did so on the understanding that the Re-
spondent reserved the discretion to change the price or
level of benefits under the Beneflex Plan on an annual
basis. The 2000–2004 collective-bargaining agreement
specifically indicated that the employees’ benefits were
being provided pursuant to “all terms and conditions” of
the Beneflex Plan. From 1995 to 2004, the Respondent
unilaterally implemented changes to the Beneflex Plan
on an annual basis. In each instance, the Union did not
oppose the Respondent’s changes. These changes were
implemented nationwide for tens of thousands of em-
ployees.
Following the expiration of the parties’ contract in
2004, as explained in Louisville Works, the Respondent
was required to continue to provide unit employees with
benefits under the Beneflex Plan. The Respondent’s
obligation to continue the status quo included the obliga-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1098
tion to continue to implement the Beneflex Plan in the
same manner that it had been implemented in the preced-
ing years, including its annual changes to the Plan, which
it implemented nationwide for unit and nonunit employ-
ees alike.
As I explained in Louisville Works, supra, and contrary
to the majority there and here, the “reservation of rights”
clause in the Beneflex Plan is not a management-rights
provision, which is typically a negotiated clause giving
management sole discretion over a broad range of other-
wise bargainable matters. Instead, it is a discrete, spe-
cific, and integral component of the Beneflex Plan as a
whole, pursuant to which the Plan explicitly allows for
periodic changes to be made.2 And, as I explained in
Louisville Works, the Respondent was entitled to follow
its past practice in making the January 2005 changes.
See Courier-Journal, 342 NLRB 1093 (2004); and Cou-
rier-Journal, 342 NLRB 1148 (2004). As in Louisville
Works, the majority claims that the Board’s decisions in
Courier-Journal do not support the Respondent’s actions
because the employer’s unilateral changes in the Cou-
rier-Journal cases, undertaken during a contractual hia-
tus, were consistent with prior changes made during the
contract and during the hiatus periods whereas here the
Respondent’s postcontract changes had no precedent in
prior postcontract changes. As I explained in Louisville
Works, however, there is nothing in the reasoning of the
Courier-Journal decisions to support the conclusion that
prior hiatus changes were conclusive to the outcome of
those cases. Rather, the holding there was that parties by
their actions can create a past practice authorizing an
employer’s unilateral action, which becomes the status
quo. That holding, as explained more fully in Louisville
Works, privileges the Respondent’s changes here.
Thus, in accord with my analysis in Louisville Works,
the Respondent’s unilaterally implementing annual
changes to the Beneflex Plan became an established past
practice involving a term and condition of employment,
and therefore the Respondent did not violate Section
8(a)(5) and (1) when it acted consistently with that prac-
tice by its modifications to the Beneflex Plan on January
1, 2005. Accordingly, I would dismiss the complaint.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

2 Accordingly, I disagree with the Board’s decision in Mary Thomp-
son Hospital, 296 NLRB 1245, 1249 (1989), to the extent that it treated
a reservation of rights clause contained within a corporatewide benefit
plan as a negotiated management-rights clause waiving a union’s right
to bargain over changes to the plan only for the contract term.
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 behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT make unilateral changes to your benefits
during periods when the United Steel, Paper and For-
estry, Rubber, Manufacturing, Energy, Allied Industrial
and Service Workers International Union, and its Local
4–786, are engaged in negotiations with us for a collec-
tive-bargaining agreement and have not reached impasse.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, on request of the Union, restore the unit em-
ployees’ benefits under the Beneflex package of benefit
plans to the terms that existed prior to the unlawful uni-
lateral changes that were implemented on January 1,
2005, 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 make unit employees whole by reimbursing
them, with interest, for the loss of benefits and additional
expenses that they suffered as a result of the unilateral
changes in benefits that we unlawfully implemented on
Januray 1, 2005.
E.I. DUPONT DE NEMOURS & CO.
Bruce Conley, Esq., for the General Counsel.
Denise Keyser, Esq. and Steven W. Suflas, Esq. (Ballard,
Spahr, Andrews & Ingersoll), of Vorhees, New Jersey, for
the Respondent.
Kathleen Hostetler, Esq., of Denver, Colorado, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Philadelphia, Pennsylvania, on September 13, 2005. The
Regional Director of Region 4 of the National Labor Relations
Board (the Board) issued the complaint on March 31, 2005,
based on a charge that was filed on January 3, 2005. The com-
plaint alleges that E.I. DuPont de Nemours and Company (the
Respondent or the Company) violated Section 8(a)(5) and (1)
of the National Labor Relations Act (the Act) by announcing,
E.I. DUPONT DE NEMOURS & CO. 1099
and implementing, changes to unit employees’ benefits without
meeting the obligation to bargain over those changes. The
Respondent filed a timely answer in which it denied that it had
violated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following findings of fact and conclu-
sions of law. 1
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, produces titanium oxide and
ferric chloride at its facility in Edge Moor, Delaware, where it
annually sells and ships goods valued in excess of $50,000,
directly to points outside the State of Delaware. The Respon-
dent 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. In addition, I find that the United Steel, Paper and For-
estry, Rubber, Manufacturing, Energy, Allied Industrial and
Service Workers International Union (U.S.W.), and its Local 4-
786 (formerly Paper, Allied-Industrial, Chemical and Energy
Workers International Union (PACE) and its Local 2–786) (the
Union)2 are labor organizations within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Union has represented a bargaining unit of employees at
the Respondent’s chemical production facility in Edge Moor,
Delaware, for many decades. The unit includes approximately
113 to 200 employees.3 The most recent collective-bargaining

1 The General Counsel and the Respondent have both filed unop-
posed motions to correct the transcript. Those motions are granted and
received into evidence as GC Exh. 18 and R. Exh. 47.
2 By “the Union,” I refer not only to the USW and its Local 4–786,
but also to the bargaining representative’s prior designations. The
DuPont Edge Moor Union (DEMU) represented a bargaining unit of
employees at the Respondent’s Edge Moor, Delaware facility for ap-
proximately 60 years. In May 1998, the DEMU affiliated with the Oil,
Chemical and Atomic Workers International Union (OCAW), and
became OCAW Local 8–786. The OCAW merged with the Paper,
Allied-Industrial, Chemical and Energy Workers International Union
(PACE) in January 1999, and the local became PACE Local 2–786. In
April 2005, after the complaint in this case was issued, PACE merged
with the United Steelworkers of American and has subsequently been
known as the United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International Union
(USW). The union local was redesignated USW Local 4–786.
At trial, I modified the caption of this case to reflect the collective-
bargaining representative’s current designation—United Steel, Paper
and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and
Service Workers International Union (USW) and its Local 4–786.
3 The unit is defined as follows:
All employees of the Edge Moor Plant with the exception of the Ad-
ministrative Secretary to the Plant Manager, Human Resources Assis-
tant, Technologists (Training, Planning, DCS), Work Leader, Nurses,
salary role employees exempt under the Fair Labor Standards Act, and
supervisory employees with the authority to hire, promote, discharge,
agreement covering the unit went into effect on June 1, 2000,
and expired on May 31, 2004. Prior to that, the parties operated
under a collective-bargaining agreement that was in effect from
September 1, 1987, to May 31, 2000. As of the time of trial in
September 2005, the parties had not completed a successor to
the agreement that expired on May 31, 2004.
This case concerns multiple unilateral changes to the benefits
of unit employees. The Respondent announced and imple-
mented these changes after the expiration of the most recent
collective-bargaining agreement, at a time when the parties
were engaged in negotiations for a successor agreement. On
October 11, 2004, the Respondent presented the Union with
written summaries of the planned changes in employees’ bene-
fits, and discussed the changes with union officials. Subse-
quently, the Respondent announced the planned changes to the
unit employees. In a letter dated October 14, 2004, the Union
requested that the Respondent bargain concerning the changes.
The Union also stated that it objected to the implementation of
any changes and that “the Employer must bargain in good faith
to impasse or agreement on any proposed changes.” Notwith-
standing the Union’s letter, the Respondent implemented the
changes in benefits on January 1, 2005, without first bargaining
to impasse or agreement. The following changes were made:
the amount that employees paid for prescription drugs was
increased; cost penalties were implemented for employees who
filled “maintenance medication” prescriptions at retail pharma-
cies rather than through a mail order service designated by the
Respondent; the “Employee + One” coverage level for medical,
dental, and vision benefits was eliminated and replaced with
“Employee + Child(ren)” and “Employee + Spouse” coverage
levels; employee premiums were increased for some medical
options and coverage levels; employee premiums were in-
creased for the “high” dental coverage option; coverage levels
for medical, dental, and vision options, were altered; employee
premiums were increased for the financial planning program;
and a health savings account plan was created.4
B. The Respondent’s Employee Benefits Package
The Respondent refers to the package of employee benefit
plans it provides as the Beneflex Flexible Benefits Plan. These
benefits are provided to employees at all of the Respondent’s
domestic locations, including to the unit employees at the Edge
Moor facility. In all, approximately 60,000 employees—both
union and nonunion—receive the benefits. As of 2004, the
benefit plans provided by the Respondent included: a medical
care plan; a dental care plan; a vision care plan; employee life
insurance; accidental death insurance; dependent life insurance;
a vacation “buy back” program; a health care spending account;

discipline or otherwise effect changes in the status of employees or ef-
fectively recommend such action.
4 The creation of the new health savings account plan is demon-
strated by comparing the benefits package document listing the 11
benefit plans the Respondent provided in 2004 with the document
listing the 12 benefit plans the Respondent provided in 2005. Compare
Jt. Exh. 3(C) (sec. V) and Jt. Exh. 3(D) (sec. V). The stipulation be-
tween the parties also recognizes the addition of the health savings
accounts in 2005. See Jt. Exh. 1A (stipulated facts) at pp. 22 to 23, par.
59.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
a dependent care spending account; and a financial planning
program. Most of these benefit plans are self-insured, rather
than provided through a third-party insurer. This means the
contributions of the Respondent and the participating employ-
ees pay the cost of claims under the plans, as well as the costs
for administration. It also means that the Respondent, rather
than a third-party insurer, is responsible for implementing any
modifications to those plans.
Since the inception of the Beneflex package, the plan docu-
ments have included an express management-rights provision
that gives the Respondent discretion to change or discontinue
employees’ benefit plans, as long as any changes in the price or
level of coverage are announced at the time of annual enroll-
ment.5 The Beneflex package of plans was first applied to unit
employees on January 1, 1994. When the Respondent and the
Union agreed to the package, they executed a memorandum of
understanding that superseded the benefits language in the ex-
isting contract and provided that the unit employees would be
bound by the terms stated in the Beneflex documents. The col-
lective-bargaining agreement that went into effect on June 1,
2000, stated that the employees’ benefits were being provided
subject to all terms and conditions of the Beneflex plan.6

5 The management-rights provision in the Beneflex Plan documents
states:
The Company reserves the sole right to change or discontinue
this Plan in its discretion provided, however, that any change in
price or level of coverage shall be announced at the time of an-
nual enrollment and shall not be changed during a Plan Year
unless coverage provided by an independent, third-party provider
is significantly curtailed or decreased during the Plan Year. Ter-
mination of this Plan or any benefit plan incorporated herein will
not be effective until one year following the announcement of
such change by the Company.
If any provision of this Plan is or in the future becomes con-
trary to any applicable law, rule, regulation or order issued by
competent government authority, the Company reserves the sole
right to amend or discontinue this Plan in its discretion without
notice.
6 Art. IX, sec. 1 of that now-expired collective-bargaining agreement
states:
Section 1. All existing privileges heretofore enjoyed by the employees
in accordance with the following Industrial Relations Plans and Prac-
tices of the Company shall continue, subject to the provisions of such
Plans and to such rules, regulations and interpretations as existed prior
to the signing of the Agreement, and to such modifications thereof as
may be hereafter adopted generally by the Company to govern such
privileges; provided, however, that as long as any one of these Com-
pany Plans and Practices is in effect within the Company, it shall not
be withdrawn from the employees covered by this Agreement; and
provided, further, that any change in the Industrial Relations 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 Plant of such change:
Career Transition Financial Assistance Plan
Short Term Disability Plan
Pension and Retirement Plan
Special Benefits Plan
Vacation Plan
Service Emblem Plan
Continuity of Service Rules
Treatment of Employees Called or Enlisting for Military Service
From 1995 to 2004, the Respondent implemented annual
changes to employee benefits. In each of those instances, the
changes were implemented while an agreement was in effect
that made the benefits subject to the management-rights clause
in the Beneflex documents. The Respondent did not offer to
negotiate over the changes during that period, and the Union
never sought bargaining, or challenged the Respondent’s right
to make the changes. The changes during the 1995 to 2004
period included both increases and decreases in premiums,
modifications in insurance co-payment and deductible levels,
alterations of coverage rules, and the creation of new benefits.
Some of the changes, such as the adjustment of the medical
premium and coverage levels, were made almost every year.
However, the Respondent also made other types of changes to
benefits only once or intermittently during the 1995 to 2004
period. These nonroutine changes included modifications to the
employee assistance program and targeted nutrition counseling
program, addition of a portability feature to the life insurance
plan, alteration of dental claim review procedures, modification
of the dependant care spending account plan, addition of direct
deposit to flexible spending account plans, institution of “stop
loss protection” for prescription drugs, and creation of a legal
services and financial counseling plans.
In general, the changes the Respondent made to employee
benefits each year were applied to all plan participants in the
United States, not just to the members of the Edge Moor bar-
gaining unit. An exception was made at the Respondent’s facil-
ity in Tonawanda, New York, from 1997 to 2001. During those
years, the Respondent held employees’ premiums at the Tona-
wanda facility to 1996 levels, even when premiums were
changed for other plan participants. This was done as part of a
settlement agreement negotiated between the Respondent and
Region 3 of the NLRB.
C. Negotiations
On March 31, 2004, the Respondent notified the Union that
it was exercising its contractual right to terminate the existing
collective-bargaining agreement and commence negotiations
for a new contract. This meant that unless the existing agree-
ment was renewed or extended it would expire on May 31,
2004. The Union proposed extending the contract for a 30-day
“rolling” period, but the Respondent rejected that proposal. The
Respondent also informed the Union that when the contract
expired, the Company would cease deducting union dues from
unit employees’ earnings and would not honor the arbitration
provisions in the contract except to the extent it was legally
required to do so.

Payment to Employees on Jury Duty
Savings & Investment Plan
Total & Permanent Disability Income Plan

Art. IX, sec. 3 of the expired agreement states:
Section 3. In addition to receiving benefits pursuant to the Plans set
forth in Section 1 above, employees shall also receive benefits as pro-
vided by the Company’s Beneflex Benefits Plan, subject to all terms
and conditions of said Plan.

E.I. DUPONT DE NEMOURS & CO. 1101
The first bargaining session for a successor agreement took
place on April 29. At that meeting, the Respondent informed
the Union that it intended to propose new contract language
stating that the Respondent had the right to change the benefit
plans in the Beneflex package during hiatus periods between
contracts. The Respondent stated that it believed the Company
already had authority to unilaterally make “out-of-contract”
changes to benefits, but wished to expressly confirm that au-
thority given litigation over such changes at other facilities. The
Union disagreed that the Respondent already had the claimed
authority, and stated that the contractual waiver authorizing
unilateral changes would expire when the collective-bargaining
agreement expired. The Union set forth its position in a May 27
letter to the Respondent.
The contract expired on May 31. On June 14, the Respon-
dent presented the precise contract language regarding its pro-
posal on out-of-contract changes, which the Respondent re-
ferred to as the “Beneflex waiver.” The language provided that
the contract section that subjected employees’ benefits to the
terms set forth in the Beneflex documents—including the man-
agement-rights provision—would survive expiration of the
collective-bargaining agreement.7 The same day that the Re-
spondent made this proposal, the Union notified the Respon-
dent, by letter, that the proposal concerned a permissive subject
of bargaining, that the Union was not required to bargain to
impasse over the issue, and that the Respondent could not “le-
gally implement any contract proposal if it insisted on the
above-referenced permissive subject.” The Union expanded on
this contention in a letter dated June 21, 2004, stating that the
Respondent’s proposal to “extend its management rights provi-
sion to the post-expiration period effects [sic] the right to bar-
gain over the plan, and not the terms of the plan itself” and was
a permissive subject of bargaining for that reason. The Union
also stated that it was “not interested” in “voluntarily consider-
ing” the Respondent’s waiver proposal, and considered the
subject “off the bargaining table.” The Union stated that it had
not yet determined whether it would agree to the existing con-
tract language.
During negotiations, the Respondent conceded that the pro-
posal on waiver language was a permissive subject of bargain-
ing. Nevertheless, at sessions on July 13 and/or 15, 2004, the
Respondent stated that it considered the waiver a “major” pro-
posal and that if the Union would not agree to discuss it, the
Union would have to propose an alternative to the entire Bene-
flex package of benefit plans. The Union offered to accept the
existing benefits, but without the addition of the Respondent’s
proposed waiver language. The Respondent rejected that pro-
posal, and linked the nonmandatory waiver proposal to the
mandatory subject of the benefits themselves by stating that it
would not continue providing its benefits package to unit em-

7 The Respondent’s proposal was to add language to art. IX, sec. 3 of
the contract, stating that: “[T]he provisions of this Section 3 shall sur-
vive the expiration of this Agreement and shall remain in full force and
effect unless and until the Parties mutually agree to change or terminate
this Section 3.”

ployees unless the Union accepted the proposed waiver lan-
guage.
In mid-July, as a result of the conversations summarized
above, the Union began the effort to develop a package of
benefit plans that would be comparable to the Respondent’s
package, but would not require the Union to accept the waiver
proposal. The Union made a request to the Respondent on July
14 for information that the Union believed a third-party insurer
would require in order to create an alternative to the Respon-
dent’s benefit plans. On July 27, 2004, approximately 2 weeks
after the Respondent told the Union that there would be no
Beneflex package for unit employees without agreement re-
garding the waiver, the Union contacted Blue Cross Blue
Shield of Delaware (BCBS) and asked it to create a package of
plans to “mirror” the benefits provided by the Respondent.
Subsequently, on July 28, August 6, and September 29, the
Union requested that the Respondent provide additional infor-
mation relating to the development of alternative benefit plans.
In many respects, the Union’s information requests to the Re-
spondent reflected what BCBS had requested from the Union.
The Union would provide BCBS representatives with informa-
tion, and when the BCBS officials told the Union that addi-
tional information was needed, the Union would, in turn, re-
quest any information it did not have from the Respondent. The
information requested by BCBS included census data, Consoli-
dated Omnibus Budget Reconciliation Act of 1985 (COBRA)
rate information, and 2005 changes to the employees’ benefit’s
plans. The Union requested information relating to the Respon-
dent’s costs for the existing plans in order to determine how
much the Respondent might be expected to contribute towards
the BCBS alternatives. The Respondent provided a good deal
of the requested information in a prompt manner, but resisted
providing other information that, in the Respondent’s view, was
not needed to design alternative benefit plans.8

8 According to the Respondent, the Union requested unnecessary in-
formation as a means of delaying negotiations. In an effort to substanti-
ate this contention, the Respondent introduced printouts of email com-
munications from August 2004 in which a BCBS representative pro-
vided some type of benefits quote to an insurance consultant who was
acting on behalf of counsel for the Respondent. The record evidence
regarding this rate quote is insufficient to support the Respondent’s
contention regarding delay by the Union. First, the record does not
show that the Union possessed all the information that was provided to
BCBS in order to generate the quote. Second, the record does not show
that the quote BCBS provided to the insurance consultant covered
benefits that were comparable to those being provided by the Respon-
dent. Third, in the email communication forwarding the quotes, the
BCBS representative includes a caveat that “the group is just 20 percent
credible.” That statement calls into question whether the rate quote—
whatever information it was based on and whatever benefits it cov-
ered—was final. The General Counsel raised a question at trial regard-
ing the “20 percent credible” caveat, but the Respondent’s witness
could not clarify its meaning. Fourth, the record does not show that
information which was sufficient to allow BCBS to make a rate quote
to the Respondent’s insurance consultant, would have been sufficient
for BCBS to make a concrete offer of an actual plan to the bargaining
unit at a competitive rate. Perhaps more to the point, the record does
not rebut testimony that the Union was requesting information from the
Respondent that BCBS had specifically demanded in order to develop
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
The Union invited a BCBS representative to a bargaining
session on September 29 in order to make a presentation to the
Respondent regarding a potential benefits package. At the same
session, the Union asked the Respondent to provide information
about the benefits changes the Company was planning for 2005
because BCBS needed to know what those changes were in
order to mirror the Respondent’s benefit plans as they would
exist in 2005. The parties discussed the BCBS presentation, and
other issues relating to benefits, at bargaining sessions on Oc-
tober 6 and 13. On October 11, the Respondent informed the
Union of the changes it was planning to make to employees’
benefits in 2005. In an October 14 letter, the Union requested
bargaining on the proposed changes and objected to implemen-
tation of the changes. The Union did not suggest or propose
specific modifications to the planned changes. For its part, the
Respondent never answered the Union’s written request to
bargain over the 2005 benefits changes and never suggested
any modifications to those changes. The Respondent’s lead
negotiator testified that she did not believe the Company was
required to respond to the Union’s request to bargain over the
planned changes in benefits since the parties were already dis-
cussing a BCBS alternative to the benefit plans being provided
by the Respondent.
On November 8, 2004, the Union provided the Respondent
with its actual proposal for an alternative benefits package. The
proposal included BCBS plans covering medical benefits, den-
tal benefits, vision benefits, and life, accidental death and dis-
memberment insurance. The Union also proposed that the Re-
spondent would continue to provide its own vacation buyback
program and financial planning program. The Union informed
the Respondent that employees would have to enroll by De-
cember 15, 2004, in order to be covered by the BCBS plans on
January 1, 2005. The Respondent did not agree to the Union’s
benefits proposal.
At a negotiating session on November 16, the Union with-
drew its November 8 benefits proposal, and substituted two
alternative offers. First, the Union offered to accept the Re-
spondent’s benefit plans, along with all the changes that the
Respondent planned for 2005, while the parties negotiated a
new contract, if the Respondent would withdraw the waiver
proposal. The second proposal contained almost all the ele-
ments of the November 8 proposal, except now rather than
offering to divide the plan costs 70 percent (employer)/30 per-
cent (employee), the Union proposed that unit employees
would “be responsible for the same monthly costs that the em-
ployee would assume pursuant to the current Beneflex cost
savings arrangement.” The Respondent rejected these propos-
als.9

the benefits package. I also note that, despite its purported concern that
the Union was not generating a benefits proposal quickly enough, the
Respondent never attempted to expedite the Union’s efforts by provid-
ing union representatives with the rate quote information that the Com-
pany’s insurance consultant had obtained.

9 Denise Keyser, who in addition to being the Respondent’s lead ne-
gotiator was one of its trial attorneys in this matter, testified that the
Union’s November 8 proposal was more expensive for the Respondent
than the existing benefits plans and that the Union’s November 16
At a bargaining session on December 16, the Respondent
told the Union that it was going to implement the previously
announced benefits changes on January 1, 2005. The Respon-
dent stated that it believed it had the right to do this and noted
that it was too late for an alternative to its benefit plans to be
implemented by January 1, given the December 15 enrollment
cut-off for the BCBS plans.10 The Union responded that it did
not agree to the implementation of the changes, that the benefits
were a mandatory subject of bargaining, and that, in its view,
the Respondent’s planned course of action was unlawful. The
Respondent expressed a willingness to discuss the BCBS pro-
posal during future negotiations, and the parties scheduled addi-
tional bargaining sessions for 2005.
The Respondent implemented the previously announced
changes to its benefit plans on January 1, 2005. Those changes
included increases in employee premiums for certain medical
and dental options, increases in prescription drug costs, modifi-
cation of various insurance coverage levels, increases in premi-
ums for the financial planning benefit, and the creation of a
health savings account. Subsequent to the unilateral implemen-
tation of these changes, the parties engaged in further negotia-
tions about the Respondent’s waiver proposal and the Union’s
objections to the unilateral changes. The Respondent concedes
that the parties were not at impasse when it made those
changes.11
D. The Complaint Allegations
The complaint alleges that the Respondent failed and refused
to bargain in violation of Section 8(a)(5) and (1) of the Act by
announcing and implementing changes to the employees’ bene-
fit plan without affording the Union an opportunity to bargain.
Analysis and Discussion
Employee benefits, such as healthcare insurance and em-
ployee savings plans are mandatory subjects of collective bar-
gaining. Larry Geweke Ford, 344 NLRB 628 fn. 1 (2005)

modification of that proposal was regressive. The record is insufficient
to substantiate the claims regarding the costs of the various packages.
Keyser’s pronouncements on this and other matters often gave the
impression of being the self-serving representations of an advocate, and
the record does not show that her opinions regarding the relative costs
of the benefits plans were based on fact.
10 The record does not show that, in 2005, the Company could not
have provided its benefit plans to unit employees under the 2004 terms
while the negotiations for a new contract were ongoing. In its Reply
Brief, the Respondent summarily dismisses the idea that this could have
been done as “fanciful.” However, the Respondent did not offer the
testimony of a benefits administrator or other reliable evidence to show
that continuing the 2004 benefits terms for unit members would have
been impossible, or even difficult. As noted above, for several years the
Respondent exempted a plant in Tonawanda, New York, from a gener-
ally applicable change in benefits. The Respondent’s lead negotiator
testified that the Respondent was willing to bargain with the unit over
the specifics of the 2005 changes, a claim that suggests an ability to
control whether those changes were made.
11 See Transcript 26 (Counsel for the Respondent states: “Let’s be
clear at the start what this case is not about. . . . .This case is not about
impasse, there is no allegation that [t]he parties have reached that
point.”). See also Jt. Exh. 1A (stipulated facts) at p. 24, par. 64.

E.I. DUPONT DE NEMOURS & CO. 1103
(change in health care plans); Mid-Continent Concrete, 336
NLRB 258, 259 (2001), enfd. 308 F.3d 859 (8th Cir. 2002)
(healthcare benefits); Allied Mechanical Services, 332 NLRB
1600, 1610 (2001) (medical savings plan for employees); Na-
tional Broadcasting Co., 252 NLRB 187, 190 (1980) (income
savings plan for employees). When, as in the instant case, the
“parties are engaged in negotiations for a collective-bargaining
agreement,” the employer’s obligation to refrain from unilateral
changes regarding such mandatory subjects extends beyond the
mere duty to provide notice and an opportunity to bargain about
a particular subject matter; rather it encompasses a duty to re-
frain from implementation at all, absent overall impasse on
bargaining for the agreement as a whole. Register-Guard, 339
NLRB 353, 354 (2003), quoting RBE Electronics of S.D., Inc.,
320 NLRB 80, 81 (1995); Bottom Line Enterprises, 302 NLRB
373, 374 (1991), enfd. sub nom. mem. Master Window Clean-
ing v. NLRB, 15 F.3d 1087 (9th Cir. 1994). The employer’s
obligation to refrain from implementing unilateral changes
survives the expiration of the contract, and failure to meet that
obligation is a violation of Section 8(a)(5) and (1) of the Act.
Beverly Health & Rehabilitation Services, 335 NLRB 635, 636
(2001), enfd. in relevant part 317 F.3d 316 (D.C. Cir. 2003);
Made 4 Film, Inc., 337 NLRB 1152 (2002).
On January 1, 2005, during negotiations for a new collective-
bargaining agreement, the Respondent implemented numerous,
substantial, changes to the benefits of unit employees without
bargaining to impasse or obtaining the Union’s agreement to
the changes. These changes concerned mandatory subjects of
bargaining, including the modification of employees’ medical
insurance, dental benefits, vision care benefits, prescription
drug benefits, and financial planning benefits, and the creation
of a health savings account plan. The Respondent raises three
defenses that it contends permit its unilateral implementation of
the 2005 changes in benefits. First, the Respondent argues that
the parties intended for the contractual waiver of bargaining
over benefit plan changes to continue in effect during out-of-
contract periods. Second, the Respondent argues that the
changes were lawful because they were made pursuant to its
established past practice of unilaterally modifying employees’
benefits. Last, the Respondent argues that the company was not
required to refrain from implementing the various changes in
benefits until an overall impasse in bargaining because those
changes were a discrete and recurring event. For the reasons
discussed below, I find that the Respondent has not established
any of these defenses, and conclude that it violated Section
8(a)(5) and (1) by unilaterally changing unit employees’ bene-
fits on January 1, 2005.12

12 The complaint alleges that the Respondent failed and refused to
bargain over the changes in violation of Sec. 8(a)(5), but it does not
specifically aver that the Respondent did so by making unilateral
changes during negotiations for a collective-bargaining contract and
without bargaining to impasse. That allegation is, if not strictly encom-
passed by the complaint allegations, then closely related to those alle-
gations, and it was the focus of the parties’ arguments at trial and in
their briefs, as well as of the evidence. I conclude that this allegation
was fully litigated. See Seton Co., 332 NLRB 979, 981 fn. 9 (2000)
(violations may be found if they are closely connected to the subject
matter of the complaint and have been fully litigated); Pergament
A. Were the Unilateral 2005 Changes to Beneflex Permitted
by the Management-Rights Clause
The Respondent may avoid a finding of violation if it can
show that the Union waived bargaining regarding the subjects
of the unilateral changes. A waiver of bargaining rights by a
union is not to be lightly inferred, but rather must be demon-
strated by the union's clear and explicit expression. Beverly
Health & Rehabilitation Services, supra at 636; Rockford
Manor Care Facility, 279 NLRB 1170, 1172 (1986). In this
case, the collective-bargaining agreement between the parties
stated that the employees’ benefits were being provided “sub-
ject to all terms and conditions of [the Beneflex] Plan,” which
included a management-rights provision giving the Respondent
the right to make unilateral changes to employee benefits. Al-
though the parties agree that this constituted a contractual
waiver by the Union of its right to bargain over changes to
employees’ benefits during the contract’s term, they disagree
about whether the waiver survived the contract’s expiration.
The Board has held that a contractual waiver does not extend
beyond the expiration of the contract unless the contract pro-
vides that it does. Blue Circle Cement Co., 319 NLRB 954, 954
(1995); see also Long Island Head Start Child Development
Services, 345 NLRB 973 (2005) (A contractual reservation of
management rights does not extend beyond the expiration of
the contract in the absence of evidence of the parties’ contrary
intentions.) In this case, the contract had expired at the time of
the at-issue changes, but the Respondent contends that the evi-
dence shows the parties intended for the management-rights
clause to survive expiration of the contract. The Respondent
relies on language in article IX, section 1, of the contract which
states that “the following Industrial Relations Plans and Prac-
tices of the Company shall continue, subject to the provisions
of such Plans.” According to the Respondent, the phrase “shall
continue” shows that the parties agreed that the contractual
right to make unilateral changes to benefits was to continue
indefinitely, not just continue for the term of the contract. I do
not agree that this language refers to the period beyond the
contract’s expiration, but the bigger problem is that section 1
does not apply to any of the benefit plans that are at-issue here.
The Respondent uses ellipsis to conveniently omit the portion
of section 1 that enumerates the “Industrial Relations Plans and
Practices” that it covers—11 in all—none of which are benefit
plans at issue here. See, supra, fn. 6 (art. IX, secs. 1 and 3). The
provision in the contract that does cover the Beneflex package
of benefit plans (art. IX, sec. 3), and which makes the unit em-
ployees’ entitlement to those benefits subject to the manage-
ment-rights provision, does not include the “will continue”
language relied on by the Respondent, or any other language
that arguably evidences an intent that the waiver will continue
postcontract. Id.
The Respondent also claims that the Union’s bargaining
notes from one of the sessions for the expired contract show
that the parties intended for the waiver to survive the contract. I
doubt that under Blue Circle Cement Co., supra, such parol

United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir.
1990) (same).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
evidence can meet the Respondent’s burden.13 At any rate, the
bargaining notes do not indicate that the waiver was meant to
outlive the contract. The passage relied on by the Respondent
concerns the deletion of an old contract provision, article XIV,
that related to employees’ pre-Beneflex hospital and medical
benefits. The Union’s bargaining notes report: “Management is
proposing to eliminate [art. XIV] since it is old and it is now
covered in the Beneflex Package. The Union stated that by
Management doing this, they are taking it out of the bargaining
realm. Management said accurate.” The language about taking
something out of the bargaining realm is, in my view, so am-
biguous as to be virtually devoid of meaning. It is impossible to
tell with any certainty what it is that’s being taken out of the
bargaining realm by the deletion of article XIV, or for how
long. That being said, the Respondent’s interpretation that the
passage refers to changes in the Beneflex Package of plans is a
particularly unlikely one since article XIV was being deleted
specifically because it related to no-longer-extant benefit plans,
not to the Beneflex package. Even if I could somehow conclude
that by deleting a provision relating to non-Beneflex contract
terms, the parties meant to take future changes to the Beneflex
package of plans “out of the bargaining realm,” the passage in
the bargaining notes would not suggest that the parties meant
that such waiver would outlive the bargaining agreement. The
passage makes no reference to out-of-contract periods and does
not otherwise suggest that it has anything to do with such peri-
ods. I conclude that the Respondent has not introduced any
significant evidence that the parties intended for the waiver to
outlive the contract, and certainly has not demonstrated such
intent through the type of “clear and explicit” evidence that is
generally required to establish a contractual waiver. Beverly
Health & Rehabilitation Services, supra; Rockford Manor Care
Facility, supra.
For the reasons discussed above, I reject the Respondent’s
argument that the parties intended for the contractual waiver to
survive the expiration of the contract.
B. Were the Unilateral 2005 Changes to Employees’
Benefits the Lawful Continuation of an
Established Past Practice
The Respondent also argues that, irrespective of waiver, the
unilateral changes to employees’ benefits in 2005 were lawful
because they were a continuation of a past practice. To prove
this defense, the Respondent has the burden of showing that the
unilateral changes were consistent with an established past
practice. Beverly Health & Rehabilitation Services, supra at
636; Eugene Iovine, Inc., 328 NLRB 294, 294–295 fn. 2
(1999), enfd. 1 Fed Appx. 8 (2d Cir. 2001). The Respondent
argues that this burden is met here by the Company’s 10-year
history of making annual changes to employees’ benefit plans
without bargaining over those changes, and without objection

13 Moreover, the Respondent itself expresses doubt that the bargain-
ing notes are a reliable representation of what was said at the sessions.
It points out that “There is nothing in the record that either describes
the manner in which these exhibits [the bargaining notes] were gener-
ated or vouches for their accuracy.” R. reply br. at 9. The Respondent
dismisses the bargaining notes as “nothing more than a general sum-
mary.”
by the Union. The 2005 unilateral changes being challenged in
this case were, according to the Respondent, merely a continua-
tion of that long-time practice. The General Counsel and the
Charging Party counter that the Respondent never previously
made, and the Union never acquiesced in, unilateral changes to
benefits during out-of-contract periods when the contractual
waiver was not in effect. For the reasons discussed below, I
conclude that the General Counsel and the Charging Party have
the better argument.
The Respondent contends that the “prior practice” issue in
this case is controlled by the Board’s decisions in two cases
involving Courier-Journal I, 342 NLRB 1093 (2004), and Cou-
rier-Journal II, 342 NLRB 1148 (2004). Like the Respondent
here, Courier-Journal had a longstanding practice of making
unilateral changes to its health care plan without opposition
from the Union. Courier-Journal I, supra at 1093; Courier-
Journal II, supra at 1148. Unlike the Respondent, however, the
Courier-Journal’s past practice included changes made both
when contracts were in effect and during hiatus periods be-
tween contracts. Id. The Board held that, under those circum-
stances, the Courier-Journal’s unilateral changes to employees’
health care premiums during a hiatus period between contracts
were “essentially a continuation of the status quo—not a viola-
tion of Section 8(a)(5).” Courier-Journal I, supra. Regarding
the argument that the prior changes had been made pursuant to
a contractual waiver that did not survive the expiration of the
contract, the Board stated that it did not have to reach the issue
because its decision was “not grounded in waiver,” but “in past
practice, and the continuation thereof.” Detroit Newspaper, 343
NLRB 1041 (2004).
Although the Respondent recognizes that the past practice in
the Courier-Journal cases included unilateral changes during
out-of-contract periods, it argues that this fact is of no special
significance and does not meaningfully distinguish the situation
in those cases from the one at issue here. I disagree. In its
analysis in both Courier-Journal cases, the Board highlighted
the fact that the Courier Journal’s established practice included
making unilateral changes during the hiatus period between
contracts. In Courier-Journal I, supra at 1093, the Board stated:
“The changes were implemented pursuant to a well-established
past practice. For some 10 years, the [employer] had regularly
made unilateral changes in the costs and benefits of the em-
ployees’ health care program, both under the parties’ successive
contracts and during hiatus periods between contracts.” In Cou-
rier-Journal II, supra at 1148, the Board’s analysis regarding
the “past practice” issue is as follows: “[T]he [employer] made
numerous unilateral changes in the health care plan, both dur-
ing the term of the agreement and during the hiatus period be-
tween contracts, without opposition from the Union. In these
circumstances, we find, as we did in Courier-Journal I, that the
Respondent’s practice has become an established term and
condition of employment, and therefore that the Respondent did
not violate Section 8(a)(5) when it acted consistently with that
practice by making further unilateral changes.”14 These refer-

14 When explaining the Courier-Journal I decision in a subsequent
case, Member Schaumber also recognized the prior out-of-contract
changes, stating, “[I]n The Courier-Journal, the health insurance
E.I. DUPONT DE NEMOURS & CO. 1105
ences suggest that the history of prior out-of-contract changes
was a factor relevant to the Board’s finding that Courier-
Journal had an established past practice that extended not only
to unilateral changes made during periods when the contractual
waiver was in effect, but also encompassed unilateral changes
made during out-of-contract periods. As discussed above, in the
instant case the Respondent’s past practice did not include mak-
ing unilateral changes during out-of-contract periods and there
is no other evidence that the practice extended to such periods.
I conclude that the unilateral changes at issue in the instant
case, which occurred during an out-of-contract period, were not
shown to be within an established past practice since any such
practice was confined to in-contract periods when the waiver
was in effect.
The Respondent has not only failed to show the existence of
a past practice that encompassed out-of-contract unilateral
changes to employees’ benefits, but has failed to show that a
practice of unilateral changes existed at all independent of the
contractual waiver. Since the employer in the Courier-Journal
cases had a history of making unilateral changes to health bene-
fits even when the contractual waiver was not in effect, the
Board reasonably concluded that the practice of making unilat-
eral changes had come to have a life independent of the con-
tractual waiver, regardless of any part that such waiver played
in the creation of the practice. Further out-of-contract unilateral
changes could, therefore, be made by Courier-Journal as a
continuation of the established prior practice regardless of
whether the contractual waiver was still in effect. In the instant
case, however, the Respondent has never made unilateral
changes to employees’ benefits during out-of-contract periods,
the Union has never acquiesced in such changes, and the record
does not otherwise establish that a prior practice of unilateral
changes exists independent of the expired contractual waiver.
My conclusion is supported by the Board’s decision in Reg-
ister-Guard, supra. At issue in Register-Guard was an em-
ployer’s unilateral implementation of new employee sales com-
missions. The parties’ bargaining agreement contained lan-
guage that gave the employer the “sole discretion” to make
such changes, but that agreement had expired at the time the
new commissions were implemented. The employer argued that
it had “a past practice of implementing other types of advertis-
ing sales incentive programs, without objection from the Un-
ion,” and therefore that the newly implemented commission
was a lawful “continuation of the past practice” and “did not
change the status quo.” 339 NLRB at 355. The Board rejected
that argument, noting that “in contrast to the new . . . commis-
sions at issue here, all but one of the [employer’s] past incen-
tive programs were implemented while the collective bargain-
ing agreement was still in effect.” Id. Under those circum-
stances, the Board held, the employer’s past changes, “imple-
mented under a contractual provision that has since expired, do
not establish a past practice allowing the [employer] to imple-
ment the new . . . commissions.” 339 NLRB at 356. Similarly,

changes at issue were implemented pursuant to a well established past
practice to which the union had acquiesced for 10 years, both during
contract terms and during contract hiatuses.” Larry Geweke Ford, 344
NLRB 628 fn. 1 (2005) (emphasis added).
the Respondent’s past unilateral changes to employees’ bene-
fits, were implemented under an expired contract provision, and
do not establish a past practice allowing the Respondent to
unilaterally make new changes during the postexpiration pe-
riod.
The Respondent contends that the decision in Register-
Guard, supra, “has no applicability” because the employer in
that case had not established a strong, entrenched, past practice.
(R. br. at 16–17; R. reply br. at 6–7.) Contrary to the Respon-
dent’s argument, the Board’s decision in Register-Guard does
not take issue with the employer’s proof that it had a past prac-
tice of unilaterally implementing various sales incentive pro-
grams. Rather the Board’s rejection of the defense based on that
practice turned on the fact that the practice, like the Respon-
dent’s in this case, did not include the requisite history of uni-
lateral changes made during out-of-contract periods when the
waiver was not in effect.15 The Respondent also argues that the
Register-Guard decision should not be followed because it was
not cited in the Courier-Journal cases issued the following
year. However, because of the absence of an established history
of out-of-contract changes in Register-Guard, that decision is
not inconsistent with the rationale or holding of the Courier-
Journal cases and there is no basis for concluding that the latter
cases overruled Register-Journal sub silentio. Recent Board
precedent is not obliterated simply because it is not cited by a
consistent decision in a later case.
The Respondent’s argument that the 2005 changes in bene-
fits should be considered merely a continuation of an estab-
lished past practice also fails because those changes went well
beyond the types of adjustments to coverage levels and premi-
ums that the Respondent had a history of making routinely each
year. The 2005 changes included, inter alia, the creation of an
entirely new health savings account plan and the institution of
penalties for an employee’s failure to use a specified pharmacy
for certain prescriptions. Although the Respondent’s prior uni-
lateral changes to benefits had included the creation of other
types of new benefit programs, those changes had been made
only intermittently and were quite variable. The Board’s deci-
sion in Larry Geweke Ford, supra at fn. 1, states that past
changes that are “wholly discretionary” and “variable,” and
which are “made on an ad hoc basis” “d[o] not constitute an
established past practice that bec[omes] part of the status quo.”
Similarly, the Board has rejected an employer’s claim that uni-
lateral changes were the continuation of a dynamic status quo
when it was not shown that those changes “were consistent
with an established past practice, that the changes [we]re the
product of limited discretion on [the employer’s] part, or that
the [u]nion had previously acquiesced in similar changes within
the limits of the longstanding practice.” Berkshire Nursing
Home, 345 NLRB 220 fn. 2 (2005); see also Eugene Iovine,
Inc., 328 NLRB at 294 (consistency with past practice does not

15 It is true that in Register-Guard, the Board found that the em-
ployer had not shown an established practice of making unilateral
changes to the particular commission program involved, but the Board
addressed separately the employer’s claim that the unilateral changes
were consistent with a more general past practice of unilaterally im-
plementing sales incentive programs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
justify unilateral changes where such practice fails to create
“reasonable certainty” as to the “timing and criteria” for the
changes). In the instant case, the Respondent’s argument, if
accepted, would authorize it to unilaterally create and imple-
ment any type of new program or plan it chose for unit employ-
ees, as long as that plan fit under the general rubric of “bene-
fits” and was applied to both unit and nonunit employees. Pur-
suant to the Board’s decisions in Larry Geweke Ford, Berkshire
Nursing Home, and Eugene Iovine, such changes are too discre-
tionary, variable, and ad hoc, to be considered part of an estab-
lished past practice.16
To support its argument that the challenged changes merely
continued an established past practice, the Respondent relies on
the Board’s decision in Friendly Ford, 343 NLRB 1058
(2004).17 In Friendly Ford, a successor employer made unilat-
eral changes to employee bonuses, something that was within
the past practice of its predecessor. The Board stated that “the
mere fact that the past practice was developed under a now-
expired contract does not gainsay the existence of the past prac-
tice.” Friendly Ford, supra at fn. 3. However, the decision in
Friendly Ford did not include a finding that the employer’s past
practice of unilateral changes had been confined to in-contract
periods when a contractual waiver was in effect. Therefore, the
decision in Friendly Ford, in no way undermines the conclu-
sion that the Respondent’s past practice, which the record
shows has been confined to in-contract periods, does not en-
compass out-of-contract unilateral changes. Moreover, in
Friendly Ford the employer’s discretion to make unilateral
changes was limited because those changes were confined to a
single benefit—bonuses. As noted above, the Respondent’s
unilateral changes were far more discretionary, variable, and ad
hoc than that.18
C. Were the Unilateral 2005 Changes to Beneflex Lawful
Because Such Changes Were a Discrete
and Recurring Event
As previously noted, when parties are negotiating a collec-
tive-bargaining agreement, the employer’s obligation to refrain
from unilateral changes regarding mandatory subjects extends
beyond the duty to provide notice and an opportunity to bar-
gain, but rather encompasses a duty to refrain from implemen-
tation at all, absent impasse on bargaining for the agreement as
a whole. Register-Guard, supra; Bottom Line Enterprises, su-

16 In Courier-Journal I, the Board found that the employer’s discre-
tion was adequately limited where it could only make the same changes
to unit employees’ health care premiums that it was making to those of
nonunit employees. 342 NLRB 1093. However, in Courier-Journal I,
the Respondent was merely adjusting healthcare premiums—something
it had done routinely in the past. The employer’s discretion was limited
to a narrow subject matter. The discretion the Respondent seeks is far
broader and includes, for example, the ability to unilaterally implement
new benefit plans, and to make varied changes to a whole range of
existing benefit plans.
17 The Respondent refers to the case as Sonic Automotive.
18 The Respondent also relies on the Board’s decision in Shell Oil
Co., 149 NLRB 283 (1964). However, the Board has stated that Shell
Oil has been overruled to the extent it held that contractual waivers of
bargaining survive the contract that creates them. Beverly Health &
Rehabilitation, 335 NLRB at 636 fn. 6.
pra. In Stone Container Corp., 313 NLRB 336, 336 (1993), the
Board recognized an exception to that duty where a change
concerns a discrete, annually recurring, event that is scheduled
to take place during contract negotiations. Under this exception,
the Board has not required employers to await overall impasse
in negotiations before implementing annual wage increases or
annual adjustments to employee health insurance, but rather has
found that employers met their bargaining obligations when
they gave the unions reasonable notice of the changes and an
opportunity to bargain, but the unions either failed to request
bargaining, or did not do so in a timely manner TXU Electric
Co., 343 NLRB 1404, 1405 (2004) (employer twice notified
union of change, but union did not request bargaining either
time); Nabors Alaska Drilling, Inc., 341 NLRB 610 fn. 1
(2004) (union did not timely request bargaining); Alltel Ken-
tucky, 326 NLRB 1350, 1350 (1998) (employer informed union
of its intention not to grant annual wage increase, but union
failed to request bargaining); Stone Container Corp., supra at
336 (employer “made its proposal in time for bargaining over
the matter,” but the union “made no counterproposal concern-
ing the April wage increase, and did not raise the issue again
during negotiations”). The Respondent contends that the unilat-
eral implementation of the 2005 changes in benefits was per-
missible under the Stone Container exception. As discussed
below, I conclude that the Stone Container exception does not
apply here both because the changes were not a discrete, recur-
ring event, and because the Respondent did not satisfy even a
diminished bargaining duty.
The recurring event that the Respondent attempts to frame
does not concern a discrete subject—such as the annual adjust-
ment of medical insurance—but rather extends to all subjects
that fall under the general heading of benefits. The actual
changes the Respondent unilaterally implemented in 2005 were
not confined to recurring adjustments to a single plan, but in-
cluded the initiation of an entirely new healthcare savings ac-
count plan, the creation of penalties for employees who do not
use a designated mail-order pharmacy for certain prescriptions,
and wide-ranging changes to employee costs and/or coverages
for financial planning, medical care, dental care, and vision
care. The collection of changes in this case bears no meaningful
resemblance to the “discrete” events that were at issue in Stone
Container and the cases applying it. In Stone Container, TXU
Electric, and Alltel, the discrete event was a yearly wage in-
crease/review. In Saint-Gobain Abrasives, 343 NLRB 542
(2004), enfd. 426 F.3d 455 (1st Cir. 2005), Brannan Sand &
Gravel Co., 314 NLRB 282 (1994), and Nabors, the discrete
event was the annual review and adjustment of a health insur-
ance program. Those events were reasonably viewed as “dis-
crete” ones that could be handled separately from the ongoing
negotiations for a contract. None of those cases involved any-
thing like the breadth of changes at issue in the instant case.
Moreover, the changes in those cases involved regularly sched-
uled issues about which the employer had no choice but to take
some action.19 The Respondent’s changes, on the other hand,

19 See TXU Electric Co., 343 NLRB 1405 (The date for annual re-
view and possible wage adjustment was approaching. Absent a con-
tract on that date, the Respondent had to do something with respect to
E.I. DUPONT DE NEMOURS & CO. 1107
included a number of ad hoc actions that were not annually
occurring events, and about which the Respondent was not
required to take some action—e.g., the new healthcare savings
plan, the new prescription drug penalty, the change in financial
planning premiums. Finding the Stone Container exception
applicable to the mixed bag of changes in the instant case
would alter the meaning of the exception dramatically. In TXU
Electric, the Board stated that the Stone Container exception
had “no broad application or disruptive potential” because its
application was limited to a “discrete recurring event.” 343
NLRB 1405. Acceptance of the Respondent’s argument that
changes to a wide range of benefits, and even the addition
wholly new benefit plans, should all be considered part of one
discrete, recurring, event would deprive that limitation of much
of its meaning and would transform the Stone Container stan-
dard into what the Board indicated it should not be—i.e., an
exception of “broad application” and “disruptive potential.”
Even if it were possible, in the abstract, to consider the Re-
spondent’s collection of changes to be a “discrete recurring
event,” those changes became part of the overall contract nego-
tiations due to the Respondent’s negotiating strategies. When
the Union requested bargaining over the 2005 benefits package
changes in its October 14, 2004 letter, the Respondent’s lead
negotiator declined to respond because the parties’ ongoing
contract negotiations included discussion of a union-sponsored
replacement to the Respondent’s benefits package. Previously,
the Respondent told the Union that it would not continue to
provide its benefits package to unit employees in the new con-
tract unless the Union agreed to language setting forth man-
agement’s right to make unilateral out-of-contract changes to
benefits, such as the 2005 benefits changes at issue here. The
Respondent has not shown that prior to implementing the
changes to benefit plans on January 1, 2005, it ever indicated
that the Company viewed those changes as a discrete event that
should be bargained about in isolation from the ongoing con-
tract negotiations concerning the continued existence of those
plans. Under these circumstances, the Respondent’s 2005
changes to its benefit plans cannot reasonably be characterized
as a “discrete” event in the sense of being separate from the
contract negotiations regarding those plans.
Even if the lowered, Stone Container, bargaining standard
were applicable, I would conclude that the Respondent failed to
meet its obligations under Section 8(a)(5). At the time the Re-
spondent implemented the 2005 changes, the parties were ac-
tively exploring the possibility that they could resolve the is-
sues regarding those changes through the adoption of replace-
ment plans, or by the Union’s acceptance of the changes in
exchange for the Respondent compromising its waiver pro-
posal. Indeed, on December 16, the Respondent expressed an
interest in continuing to discuss the Union’s proposal for re-
placing the existing benefit plans with BCBS plans, and addi-
tional bargaining sessions were scheduled for 2005. After the

that matter.) (emphasis in original); Saint-Gobain Abrasives, supra at
556 (if employer had not acted unilaterally regarding health insurance,
the policies of half the employees would have expired); Stone Con-
tainer, supra at 336 (since wage increases are annually occurring event,
the employer “could not await an impasse in overall negotiations”).
Respondent implemented the 2005 changes in benefits, the
parties negotiated further regarding the waiver proposal and the
Union’s challenge to the unilateral changes. Despite the possi-
bility of a negotiated resolution, the Respondent did not delay
the implementation of the 2005 changes by even a day.
In Stone Container, and cases applying it, the Board found
that the employers met their bargaining obligations regarding
discrete events where those employers gave reasonable notice
of a change, but the unions either did not then request bargain-
ing, see TXU Electric Co., supra, Alltel Kentucky, supra, Stone
Container, supra, did not request bargaining in a timely man-
ner, see Nabors Alaska Drilling, Inc., supra, or the parties bar-
gained to impasse, see Saint-Gobain Abrasives, supra. That did
not occur in this case. Here, the Union requested, and pursued,
bargaining in a timely manner, but the employer unilaterally
implemented the changes at a time when negotiations concern-
ing those changes were ongoing.20
The Respondent argues that, although the Union requested
bargaining regarding the 2005 changes in benefits, the Stone
Container exception applies because the Union failed to pursue
bargaining regarding those changes and intentionally delayed
negotiations. Neither assertion is consistent with the facts pre-
sent here. Regarding the Respondent’s claim that the Union
failed to bargain over the 2005 changes, the evidence establish-
ing the contrary is clear. On October 14, 2004—3 days after
the Respondent notified the Union of the proposed 2005
changes—the Union demanded, in writing, that the Respondent
bargain regarding those changes. On November 8, the Union
bargained over those changes by proposing the BCBS plans as
an alternative to the Respondent’s benefit plans as they would
exist after incorporating the 2005 changes. When the Respon-
dent rejected the November 8 proposal, the Union further bar-
gained regarding the 2005 changes by proposing to accept those
changes in exchange for the Respondent withdrawing the Bene-
flex waiver proposal. On the same day, the Respondent also
proposed a modified version of its BCBS alternative.
According to the Respondent, the above-described bargain-
ing efforts by the union negotiators did not constitute bargain-
ing over the 2005 changes because the Union never proposed
modifications to the specific changes announced by the Re-
spondent. However, a party is not required to bargain over
changes by proposing modifications to the nuances of proposed
changes, but may bargain over those changes, as the Union did

20 The Respondent does not contend that it bargained to impasse re-
garding the 2005 changes, Tr. 26, something it was likely required to
do even if it did not have await an overall impasse in the contract nego-
tiations. See RBE Electronics of S.D., Inc., 320 NLRB 80, 82 (where an
employer is confronted with an economic exigency that requires
prompt action it need not await overall impasse, but may act unilater-
ally if the union “waives its right to bargain or the parties reach impasse
on the matter proposed for change”); but see Saint-Gobain, supra at 542
fn. 3 (Board majority leaves unresolved the question of whether an
employer is required to negotiate to impasse on change to a “discrete”
issue.) At any rate, under the facts present in this case, I conclude that
the Respondent unilaterally implemented changes in benefits at a time
when the parties were not approaching impasse regarding those
changes.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
here, by offering alternatives that moot or subsume the changes,
or by proposing to accept the changes in exchange for some-
thing else of value. See Anderson Enterprises, 329 NLRB 760,
772 (1999), enfd. 2 Fed. Appx. 1 (D.C. Cir. 2001) (Bargaining
does not take place in isolation and a proposal on one point
serves as leverage for positions in other areas.), quoting Korn
Industries v. NLRB, 389 F.2d 117, 121 (4th Cir. 1967). Indeed,
if there was any party that could be said to have demonstrated
an unwillingness to bargain over the specifics of the 2005
changes it was the Respondent, which explicitly took the posi-
tion that it was not required to bargain over such changes and
did not respond to the Union’s written request to bargain about
the changes. The Union’s timely request to bargain over the
2005 changes in benefits, not to mention its actual bargaining
over those changes, distinguishes the instant case from those in
which application of the Stone Container exception was appro-
priate. The record shows that the Respondent unilaterally im-
plemented its 2005 changes when negotiations regarding those
changes were still open. I conclude that the Respondent failed
to meet even the lower bargaining duty that pertains in cases
controlled by Stone Container.
The Respondent also contends that the Union intentionally,
and unnecessarily, delayed bargaining regarding benefits in
order to force the Respondent to implement those changes uni-
laterally, thereby creating a pretense for the Union to file an
unfair labor practices charge. See Bottom Line Enterprises, 302
NLRB 373, 374 (1991) (employer not required to bargain to
overall impasse where union “insists on continually avoiding or
delaying bargaining”). The Respondent offers no meaningful
evidence to support this accusation impugning the Union’s
motives. To the contrary, the facts established by the record
belie the Respondent’s claim of intentional and unnecessary
delay. It was in mid-July 2004 that the Respondent stated, for
the first time, that the Union would either have to agree to the
Beneflex waiver language—something the Respondent con-
ceded was a nonmandatory subject of bargaining—or would
have to develop a union alternative to the entire collection of
benefit plans provided by the Respondent. When it gave this
ultimatum, the Respondent surely knew that developing an
alternative to those plans would be a huge undertaking for the
Union. There were 11 (later 12) separate plans under the Bene-
flex umbrella, and much of the information necessary to de-
velop alternatives to those plans was in the Respondent’s, not
the Union’s, possession. Moreover, the Union would have to
give an outside provider sufficient information to convince that
provider to replace the plans at a competitive cost.
The record shows that the Union offered the BCBS alterna-
tive less than 4 months after the Respondent presented its ulti-
matum. On its face, I consider that a reasonable period of time
given the complexity of the task. Moreover, the evidence sup-
ports the view that the Union promptly began its effort to de-
velop alternative plans, and pursued that effort diligently. On
July 14, no more than a day after the Respondent gave its ulti-
matum, the Union requested information that it believed a
third-party insurer would need to develop alternatives to the
Respondent’s benefit plans. Two weeks later, the Union en-
gaged BCBS to develop alternative benefit plans. The Union
made multiple information requests for information required by
BCBS.
On October 11, the Respondent provided the information the
Union had been requesting regarding the 2005 changes and less
than a month later the Union presented its proposal for an alter-
native to the Respondent’s package of benefit plans for 2005.
There is no significant evidence showing that the Union did not
work diligently with BCBS to develop its alternative plans
promptly. It is not alleged that the Union ever refused to meet
to negotiate at reasonable times and places. The Respondent’s
allegation that the Union intentionally delayed bargaining re-
garding benefits is not only unproven by the record evidence, it
is rebutted by that evidence.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5).
3. The Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally implementing changes to the benefits of unit
employees at a time when the parties were engaged in negotia-
tions for a collective-bargaining agreement and the parties had
not reached impasse.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In particular, I recommend that the
Respondent be ordered to restore, for unit employees, the bene-
fit terms that existed before the 2005 unilateral changes to the
Beneflex package of benefit plans, and to maintain those terms
in effect until the parties have bargained to agreement or a valid
impasse, or the Union has agreed to changes. See Larry Ge-
weke Ford, 344 NLRB 628 (2005) (The standard remedy for
unilaterally implemented changes in health insurance coverage
is to order the restoration of the status quo ante.) I recommend
that the Respondent be ordered to make whole the unit employ-
ees and former unit employees for any loss of benefits they
suffered as a result of the Respondent’s unlawful implementa-
tion of its 2005 changes to their benefits, as set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as set forth in New Horizons for
the Retarded, 283 NLRB 1173 (1987). In addition, I recom-
mend that the Respondent be ordered to reimburse unit em-
ployees for any expenses resulting from the Respondent’s
unlawful changes to benefits as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), affd. 661 F.2d 940 (9th
Cir. 1981), with interest as set forth in New Horizons for the
Retarded, supra.
ORDER
The Respondent, E.I. DuPont de Nemours and Company,
Edge Moor, Delaware, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Making unilateral changes to the benefits of unit employ-
ees during periods when the parties are engaged in negotiations
E.I. DUPONT DE NEMOURS & CO. 1109
for a collective-bargaining agreement and have not reached
impasse.
(b) 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 effec-
tuate the policies of the Act.
(a) Restore the unit employees’ benefits under the Beneflex
package of benefit plans to the terms that existed prior to the
unlawful unilateral changes that were implemented on January
1, 2005, and maintain those terms in effect until the parties
have bargained to a new agreement or a valid impasse, or the
Union has agreed to changes, as provided in the remedy section
of this decision.
(b) Make the unit employees whole by reimbursing them for
any loss of benefits and additional expenses that they suffered
as a result of the unlawful unilateral changes to benefits that
were implemented on January 1, 2005, as provided in the rem-
edy section of this decision.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Edge Moor, Delaware, copies of the attached notice
marked “Appendix.”22 Copies of the notice, on forms provided
by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since January 1,
2005.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

22 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”