E.I. DUPONT DE NEMOURS - LOUISVILLE WORKS

National Labor Relations Board - Board Decisions

Feb 11, 2019

09-CA-040777 (N.L.R.B. Feb. 11, 2019)

NOT TO BE INCLUDED RMcKE
IN BOUND VOLUMES Louisville, KY
Edge Moor, DE

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
E.I. DU PONT DE NEMOURS, LOUISVILLE WORKS
and Cases 9-CA-040777
9-CA-041634
PAPER, ALLIED-INDUSTRIAL, CHEMICAL
AND ENERGY WORKERS INTERNATIONAL
UNION AND ITS LOCAL 5-2002
E.I. DU PONT DE NEMOURS AND COMPANY
and Case 4-CA-033620
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION (USW)
AND ITS LOCAL 4-786
ORDER DENYING MOTION FOR RECONSIDERATION
The Charging Parties’ motion for reconsideration of the Board’s Decision and Order reported at
367 NLRB No. 12 (2018) is denied.1 The Charging Parties have not identified any material error or
demonstrated extraordinary circumstances warranting reconsideration under Section 102.48(c)(1) of the
Board’s Rules and Regulations.2

1 The Respondent filed a brief opposing the Charging Parties' motion and the Charging Parties filed a
reply brief.
2 The Charging Parties assert that the Board committed material error by failing to decide the "dispositive
issue" of whether the Respondent violated the Act by refusing their requests to bargain over the
Respondent's lawful changes to the unit employees' Beneflex Plan. We find no merit in the Charging
Parties’ contention. These consolidated proceedings were litigated by the General Counsel on the theory
that the Respondent violated Section 8(a)(5) and (1) of the Act by unlawful unilateral changes
2
Dated, Washington, D.C., February 11, 2019.
_________________________________
John F. Ring, Chairman
_________________________________
Lauren McFerran, Member
_________________________________
Marvin E. Kaplan, Member
_________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

inconsistent with past practice. During the entire litigation of this case, the General Counsel did not
pursue the theory that a violation should be found based on the Respondent's failure to bargain over a
lawful change. E.I. du Pont de Nemours, 364 NLRB No. 113, slip op. at 27-28 (2016). Accordingly, the
Board rejects the Charging Parties' motion because it is the General Counsel, not the Charging Parties,
who control the litigation of this case. See, e.g., Coastal Marine Services, Inc., 367 NLRB No. 58, slip op.
at 1 fn. 2 (2019) (The General Counsel controls the complaint, and the charging party cannot enlarge
upon or change the General Counsel's theory of the case.), and cases cited therein.
Although Member McFerran adheres to her dissent from the majority decision in this case, she
agrees that the Charging Party has not established grounds for reconsideration under Sec. 102.48(c)(1)
of the Board's rules.