E.I. Dupont DeNemours & Co.

National Labor Relations Board - Board Decisions

Jun 21, 2019

367 NLRB No. 145 (N.L.R.B. 2019)

367 NLRB No. 145
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
E. I. Dupont de Nemours and Company and Ampthill
Rayon Workers, Inc., Local 992, International
Brotherhood of Dupont Workers. Case 05–CA–
033461
June 21, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On December 20, 2006, the Respondent implemented
certain unilateral changes to its companywide Dental As-
sistance Plan (DAP) and Medical Care Assistance Pro-
gram (MEDCAP) retirement benefit plans. The changes
limited DAP and MEDCAP retirement coverage to em-
ployees hired before January 1, 2007 (and their covered
dependents). These plans covered the Respondent’s more
than 30,000 employees nationwide, including the approx-
imately 1000 employees represented by Ampthill Rayon
Workers, Inc., Local 992, International Brotherhood of
DuPont Workers (the Union) in two separate bargaining
units at the Respondent’s Spruance Fibers plant (the Spru-
ance facility) in Ampthill, Virginia. One of the conditions
on which the Respondent had offered, and the Union had
accepted, the unit employees’ participation in DAP and
MEDCAP was that the Respondent reserved to itself the
right to make changes to the plans, to suspend the plans,
or to terminate them entirely. Exercising that reserved
right, the Respondent made over 50 unilateral changes to
DAP and MEDCAP over the years, without objection by
the Union. Nevertheless, the Union challenged the De-
cember 2006 changes, and the judge found that the Re-
spondent violated Section 8(a)(5) of the Act by imple-
menting them unilaterally. We disagree with the judge’s
determination that the Respondent acted unlawfully. The
language of the parties’ collective-bargaining agreement,
the parties’ bargaining history and their past practice, con-
sidered together, establish that the Union clearly and un-
mistakably waived its right to bargain over the December
2006 DAP and MEDCAP changes. Accordingly, the Re-
spondent made those changes lawfully, and we shall dis-
miss the complaint.1

1 On August 22, 2011, Administrative Law Judge Michael A. Rosas
issued the attached decision. The Respondent filed exceptions and a sup-
porting brief, the General Counsel filed an answering brief, and the Re-
spondent filed a reply brief. Additionally, the General Counsel filed lim-
ited 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.
Facts
The Respondent manufactures synthetic fibers and re-
lated products at various facilities throughout the United
States. As of 2006, approximately 4500 of the Respond-
ent’s 30,000-plus employees nationwide were represented
by one or another of various unions.
This case involves the Respondent’s Spruance facility
in Ampthill, Virginia. For over 60 years, the Respondent
and the Union have had a collective-bargaining relation-
ship at the Spruance facility. The Union represents over
1000 hourly employees in separate Production and
Maintenance (P&M) and Clerical, Technical, and Office
(CT&O) bargaining units.
The relevant collective-bargaining agreement for the
P&M unit became effective on September 1, 1999, and the
relevant agreement for the CT&O unit became effective
on October 1, 2000. Each collective-bargaining agree-
ment contained a provision recognizing the Union as the
exclusive bargaining agent for the covered employees.
Pursuant to annual renewal provisions, both collective-
bargaining agreements remained in effect in 2006. Alt-
hough the agreements differed in several ways, the provi-
sions relevant to this case were identical. Accordingly, for
the sake of convenience, we shall refer to the two agree-
ments collectively in the singular as the “collective-bar-
gaining agreement” or “CBA.”
At issue here are the Respondent’s December 2006 uni-
lateral changes to two companywide benefit plans, DAP
and MEDCAP. The Respondent typically provides its
employees benefits through companywide plans as op-
posed to site-specific or regional plans. Providing benefits
in this way makes them easier to administer and less costly
(by achieving economies of scale). However, at the Spru-
ance facility as at its other unionized plants, the Respond-
ent offered bargaining unit employees the opportunity to
either participate in companywide benefit plans or negoti-
ate local benefit plans.2
In March 1976, the Respondent proposed to introduce
DAP at the Spruance facility as one of its companywide
benefit plans. DAP provided dental benefits to all of the
Respondent’s United States–based employees, eligible re-
tirees, eligible survivors and dependents, and certain for-
mer employees represented by the Union who met the el-
igibility requirements. During a bargaining session, the
Respondent explained to the Union the reservation-of-
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.
2 Before MEDCAP was introduced at Spruance in the 1980s, the unit
employees at that facility were covered by a site-specific hospital and
medical-surgical plan. See infra fn. 4 and accompanying text.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rights provision in DAP’s plan document. (DAP’s sum-
mary plan description contains virtually identical reserva-
tion-of-rights language.) The DAP plan document reser-
vation-of-rights provision stated:
The [Respondent] reserves the sole right to amend or
discontinue this Plan at its discretion by action of the Ex-
ecutive Committee. Any change which has the effect of
reducing or terminating benefits hereunder will not be
effective until one year following announcement of such
change by the [Respondent].
The Union requested to bargain over DAP on a local
level. The Respondent declined to do so because DAP is
a companywide plan. However, the Respondent stated
that if the Union wanted to substitute a different plan for
the Spruance facility, the Respondent would seriously
consider it. In May 1976, the Union accepted the Re-
spondent’s DAP proposal, including the reservation-of-
rights language in the DAP plan document and summary
plan description. On May 13, 1976, the parties agreed to
include DAP as an additional plan among the Respond-
ent’s companywide benefit plans listed in article VII of the
CBA, “Industrial Relations Plans and Practices” (IRP&P),
“subject to the provisions of such Plans and Practices and
to such rules, regulations and interpretations as existed
prior to the signing of this Agreement . . . .”3 Article VII
provided that the “Dental Assistance Plan, effective Sep-
tember 1, 1976, has a schedule of allowances applicable
to employe[e]s covered by this Agreement which are sub-
ject to revision solely by the Company and without refer-
ence to such a schedule in effect for any other
em[p]loye[e]s, and any such revision of schedules shall
not be construed as a reduction, termination or withdrawal
of benefits.”4
The reservation-of-rights language in the DAP plan
document remained unchanged after 1976 (with the incon-
sequential exception of its reference to action by Execu-
tive Committee, which was eventually deleted), and the
DAP summary plan description contains reservation-of-

3 The record in this case contains contracts that first became effective
for the P&M and CT&O units in 1984. However, the 1976 contract for
the P&M unit, and the corresponding 1977 contract for the CT&O unit,
are in the record in another proceeding before the Board (Cases 05–CA–
090984, 09–CA–091793, and 26–CA–092629). We take administrative
notice that the relevant language in the 1976 and 1977 contracts remained
materially unchanged in the relevant contracts contained in the record in
the instant case (until the parties deleted contractual references to DAP
and MEDCAP in light of the 1993 implementation of BeneFlex for ac-
tive employees, as discussed below). The parties do not contend other-
wise.
4 Art. VII also provided 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
rights language. For example, the July 2003 DAP sum-
mary plan description states: “While the [Respondent] in-
tends to continue the benefits and policies described in this
booklet, the [Respondent] reserves the right to change,
modify, or terminate this Plan at its discretion at any
time.”
In 1983, the Respondent adopted MEDCAP as a com-
panywide healthcare benefit plan. MEDCAP, like DAP,
applied to all of the Respondent’s employees nationwide,
as well as its former employees who met the eligibility re-
quirements of the plan and their covered dependents. This
included certain former employees represented by the Un-
ion who met the MEDCAP eligibility requirements. The
MEDCAP plan document and the summary plan descrip-
tion, like the DAP plan documents, contained reservation-
of-rights language reserving to the Respondent the right to
amend the plan or terminate it in its entirety.
When the Respondent introduced MEDCAP, the collec-
tive-bargaining agreement between the Respondent and
the Union contained a Hospital, Medical, and Surgical
coverage provision (the HMS provision). Under the HMS
provision, unit employees at the Spruance facility received
hospital and medical-surgical coverage through Blue
Cross/Blue Shield of Virginia (BCBS).5
In September 1985, the Respondent and the Union be-
gan discussing the increasing costs of healthcare coverage
and alternative healthcare plans that would address those
costs. In October 1985, the Respondent provided the Un-
ion with examples of alternative coverage. The Respond-
ent explained to the Union that MEDCAP was a healthcare
program developed by DuPont and administered by Con-
necticut General and Aetna.6 In February 1986, the Re-
spondent presented its proposal for the unit employees at
the Spruance facility to participate in MEDCAP.
Over the course of approximately 10 months of bargain-
ing, the Union resisted the MEDCAP proposal because of
the plan’s reservation-of-rights language. For example, at
one bargaining session the Union’s negotiator stated that
the “problem with the Aetna Plan [MEDCAP] is the Man-
agement Rights clause.”7 The Union pointed out that the
of such change.” The judge did not address whether the December 2006
changes to DAP were unlawful on the basis that the Respondent did not
provide 1 year’s notice, and no party has relevantly excepted. Thus, the
parties have waived any potential argument they may have had in this
regard. See Sec. 102.46(f) of the Board’s Rules and Regulations; see
also Postal Workers Local 64 (USPS), 340 NLRB 912, 912 (2003) (stat-
ing that the Board should exercise “appropriate restraint by generally
limiting [its] review to the issues and arguments raised by the parties”).
5 BCBS was a locally administered (i.e., site-specific) plan at the
Spruance facility.
6 The parties often referred to MEDCAP as the Aetna Plan.
7 During collective bargaining, the parties often casually referred to
the reservation-of-rights clause in the MEDCAP plan document as the
“management rights” clause. We do not regard this as an admission on
E. I. DUPONT DE NEMOURS CO. 3
BCBS plan did not contain a similar provision. For its
part, the Respondent adhered to its position that MEDCAP
must include the reservation-of-rights language. It ex-
plained to the Union that BCBS was a local plan con-
trolled by Spruance facility management, whereas
MEDCAP was a companywide plan. When the Union
continued to reject the Respondent’s proposals because of
the reservation-of-rights language, the Respondent firmly
declared that it “[would] not present a corporate plan that
does not have a Management Rights Clause,” and that
“employees do not have to choose [MEDCAP] if they are
concerned.”
In September 1986, the Union changed its position and
agreed to accept MEDCAP with the reservation-of-rights
clause. The parties then discussed where, in the collec-
tive-bargaining agreement, MEDCAP should be refer-
enced. The Union proposed including it in the IRP&P pro-
vision, where, the Union stated, it is recognized that the
Respondent has the right to make changes unilaterally.
The Respondent opposed listing MEDCAP in the IRP&P
provision because it did not want to be restricted by the 1-
year notice language in that provision. After further dis-
cussion, the parties agreed to refer to the MEDCAP plan
in the HMS provision, although not explicitly. The rele-
vant language in the HMS provision stated: “The [Re-
spondent] may make available to employees alternate hos-
pital medical-surgical coverage plans, and any employee
may elect such alternate coverage in lieu of the coverage
described in the above sections of this Article VIII [or
XIV].” MEDCAP was the alternate plan.
At all relevant times, article II, section 3 of the CBA
contained the following provision: “This Agreement con-
stitutes 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 Agree-
ment, shall become and be a part of this Agreement.”
In 1991, the Respondent introduced a new corporate-
wide cafeteria-style benefit program for active employees
called BeneFlex. BeneFlex contained medical and dental
benefits that were virtually identical to MEDCAP and
DAP. In 1993, the Union agreed to accept BeneFlex, and
the parties incorporated BeneFlex in their collective-bar-
gaining agreement in the IRP&P provision. The parties
also agreed to remove references to DAP and MEDCAP

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, concurring).
8 The record establishes that the Respondent never deviated from its
position that it was privileged to make changes to DAP and MEDCAP
under the reservation-of-rights language in each plan. The record also
establishes that until it objected to and filed an unfair labor practice
from the collective-bargaining agreement because active
employees would now be covered by BeneFlex instead of
DAP and MEDCAP. Significantly, however, DAP and
MEDCAP continued to cover all current and future retir-
ees (and their covered dependents), and the DAP and
MEDCAP plan documents continued to include the same
reservation-of-rights language described above.
During the decades following implementation of DAP
and MEDCAP, the Respondent made numerous unilateral
changes to those plans. Indeed, since 1987, the Respond-
ent has made at least 50 unilateral changes to the plans,
including changes to premiums, co-pays, and deductibles.
Most of the changes reduced benefits, but some changes
enhanced benefits (such as the addition of a large network
of providers to DAP and increased coverage eligibility for
an additional class of dependents). The Respondent typi-
cally provided the Union with prior notice of the changes;
the Respondent also provided information about the
changes to employees through various company publica-
tions and other forms of communication.
The Union did not file a grievance, unfair labor practice
charge or any other objection about any of these unilateral
changes. On some occasions, such as when the Respond-
ent announced increases in premiums, the Union re-
quested information about the changes. The Respondent
generally responded to requests for information, but also
reiterated that it did not have to negotiate over changes to
companywide benefit plans. The Respondent never bar-
gained over any of the changes to the plans, and some-
times, in responding to the Union, it explicitly referenced
the reservation-of-rights language.8 Also, the Respondent
stated that it was willing to consider the Union’s proposals
regarding local benefit plans, but not regarding company-
wide plans such as DAP and MEDCAP.
In August 2006, during the term of the collective-bar-
gaining agreement, the Respondent notified the Union that
it was going to eliminate DAP and MEDCAP retirement
benefits for new employees hired after January 1, 2007.
The Union requested plan documents and demanded a
meeting with the Respondent, asserting that the changes
were subject to bargaining. The Respondent provided the
Union with the requested information and answered other
questions posed by the Union, but it refused to bargain
over the changes. The Union filed a grievance over the
changes, but the Respondent denied it.9 The Respondent
charge regarding the December 2006 changes, the Union never argued
otherwise.
9 The Union grieved changes to several benefit plans, DAP and
MEDCAP among them. After the Respondent denied the grievance, the
Union demanded arbitration; the Respondent filed an action in federal
district court to enjoin arbitration; the Union counterclaimed to compel
arbitration. Although the district court ordered arbitration with respect
to several other benefit plans, it enjoined the Union from seeking to
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
implemented the changes on December 20, 2006. The Un-
ion filed an unfair labor practice charge.
The General Counsel issued a complaint alleging that
the Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally eliminating DAP and MEDCAP retirement
coverage for employees hired after January 1, 2007. The
judge found the violation as alleged. In his view, the lan-
guage of the parties’ CBA, the parties’ bargaining history,
and their past practice with respect to unilateral changes
to DAP and MEDCAP failed to establish that the Union
had waived its right to bargain regarding the December
2006 changes. He also rejected the Respondent’s remain-
ing arguments, including its defense that the Union was
equitably estopped from challenging the December 2006
changes. To the contrary, the judge found that the Re-
spondent was equitably estopped from making those
changes. The Respondent has excepted to the judge’s de-
cision. It argues, among other things, that the Union
waived its right to bargain over the December 2006
changes. It also contends that the judge erred in finding
that it was equitably estopped from making those changes.
For the reasons stated below, we find merit in the Re-
spondent’s exceptions.10
Discussion
Employers have a duty to bargain in good faith with un-
ion representatives about mandatory subjects of bargain-
ing, specifically, wages, hours, and other terms and condi-
tions 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. Chemical Workers
v. Pittsburgh Plate Glass Co., 404 U.S. 157, 180 (1971).
An employer’s unilateral change to an employment term
constituting a mandatory subject of bargaining violates
Section 8(a)(5) and (1) of the Act, absent a valid defense.
NLRB v. Katz, 369 U.S. 736, 743 (1962).

arbitrate changes to DAP and MEDCAP. E.I. DuPont de Nemours &
Co. v. Ampthill Rayon Workers, Inc., 516 F. Supp. 2d 588 (E.D. Va.
2007), affd. mem. 290 Fed.Appx. 607 (4th Cir. 2008). Consistent with
the court’s decision, the parties in the instant case stipulated that neither
MEDCAP nor DAP is arbitrable.
10 In limited cross-exceptions, the General Counsel contends that the
healthcare plan the parties negotiated in 1986 was not MEDCAP but a
different plan administered by Aetna. Therefore, the General Counsel
asserts, the Respondent did not establish that the Union waived its right
to bargain over the elimination of MEDCAP for new employees. The
General Counsel’s contention is without merit. The judge correctly
found that MEDCAP and the Aetna Plan were one and the same. Record
evidence amply supports the judge’s finding. Thus, the Respondent’s
Human Resources manager testified that MEDCAP was referred to as
“the Aetna Plan.” Further, during its initial discussions with the Union,
the Respondent stated that “Aetna would be the carrier for this program
if implemented at Spruance[.]” And the plan was referred to as
“MEDCAP/Aetna” in the years following its introduction.
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).11 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 an intent to waive bargain-
ing “is gleaned from an examination of all the surrounding
circumstances, including but not limited to bargaining his-
tory, the actual contract language, and the completeness of
the collective-bargaining agreement”), enfd. sub nom.
Electrical Workers Local 1466 v. NLRB, 795 F.2d 150
(D.C. Cir. 1986). Moreover, the Board has recognized
that a clear and unmistakable waiver may be found based
on an “amalgam” of factors, “even though none of the fac-
tors, standing alone, is sufficient to establish waiver under
existing precedent.” Omaha World-Herald, 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 properly consider whether these factors, taken
together, establish that the Union waived its right to bar-
gain about the December 2006 changes. Having con-
ducted that analysis, we find that the Union did waive bar-
gaining over those changes. Accordingly, we will dismiss
the complaint.12
11 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 agreement 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.
12 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.
The Respondent also advanced an alternative equitable estoppel de-
fense. The judge rejected that defense and found that the Respondent
E. I. DUPONT DE NEMOURS CO. 5
Contract Language
The Board has long held that express provisions in par-
ties’ collective-bargaining agreements can demonstrate
waiver of the right to bargain. American Diamond Tool,
306 NLRB at 570. A reservation-of-rights clause con-
tained in a plan document, such as the reservation-of-

was estopped from unilaterally terminating DAP and MEDCAP retire-
ment coverage for unit employees hired after January 1, 2007, without
providing an alternative coverage plan. Specifically, the judge deter-
mined that the Respondent was bound by its June 11, 1987 response to a
question posed by the Union: whether a pensioner is guaranteed a medi-
cal plan upon retirement. In response, the Respondent stated that (a) it
had reserved the right to change, modify, or discontinue the medical plan
if needed; (b) the pensioner is covered and is told what insurance he or
she has when retiring; and (c) “there has been no plan to discontinue
medical coverage for pensioners and [the Respondent] does not visualize
that ever happening . . . . The plan may be changed, or the pensioner
may be covered by a different plan.” The judge found that the Respond-
ent was bound by the latter representation, as there was “no mention at
this bargaining session of MEDCAP/DAP’s management-rights clauses
that would allow the program to be terminated.” The judge seems to
have found that the Respondent only contemplated making changes, as
he put it, “within the framework of an existing future retirement plan.”
We disagree with the judge’s equitable estoppel finding. Preliminar-
ily, the judge’s finding that there was “no mention at this [June 11, 1987]
bargaining session of MEDCAP/DAP’s management-rights clauses that
would allow the program to be terminated” was mistaken. As noted
above, the Respondent prefaced its answer to the Union’s question by
reiterating its reserved right to change, modify, or discontinue
MEDCAP. In any event, the Respondent’s June 1987 statements could
not possibly estop the Respondent from terminating MEDCAP, either
entirely or, as here, for a subset of employees. An essential element of
equitable estoppel is detrimental reliance, see Red Coats, Inc., 328
NLRB 205, 206 (1999), and the statements the judge relied on to find the
Respondent equitably estopped were made approximately 9 months after
the Union had agreed to accept MEDCAP subject to its reservation-of-
rights clause. Moreover, ERISA applies to both DAP and MEDCAP,
and under ERISA employers are free to amend the terms of an ERISA
welfare plan or terminate the plan entirely. See, e.g., Curtiss-Wright
Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995); Gable v. Sweetheart
Cup Co., 35 F.3d 851, 855 (4th Cir. 1994), cert. denied 514 U.S. 1057
(1995). ERISA places great weight on the written terms of the formal
plan documents, which cannot be overridden by informal communica-
tions. Gable, 35 F.3d at 857. In short, the Union had no reasonable
expectation of holding the Respondent to any oral representation it might
have made that contradicted the plan documents.
The question remains, however, whether the judge could find the Re-
spondent equitably estopped from terminating DAP and MEDCAP cov-
erage without providing an alternative retiree healthcare plan. We con-
clude that he could not, for two reasons.
First, the judge’s estoppel finding exceeds the scope of the complaint.
The complaint alleged that the Respondent violated Sec. 8(a)(5) of the
Act by refusing the Union’s request to bargain over termination of DAP
and MEDCAP retiree coverage for unit employees hired after January 1,
2007. The allegation is a failure to bargain over that coverage termina-
tion, not a failure to provide alternative coverage if DAP and MEDCAP
coverage is terminated.
Second, and more fundamentally, the judge’s estoppel finding ex-
ceeds the scope of the Board’s remedial authority. If the Board were to
find the 8(a)(5) violation as alleged, we would order the Respondent to
cease and desist, to rescind the change, and, on request, to bargain with
the Union before making any further changes in mandatory subjects 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-bargaining 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).13
bargaining. Nothing in the order would preclude the Respondent from
reimplementing the very change at issue here—termination of DAP and
MEDCAP coverage for a subset of unit employees—provided it bar-
gained with the Union to agreement or impasse before doing so. More-
over, we would have no authority to order the Respondent to furnish al-
ternative coverage in the event it reimplemented the disputed change.
Retiree healthcare benefits for current employees are mandatory subjects
of bargaining. Chemical Workers v. Pittsburgh Plate Glass Co., supra.
It is for the parties to work out, through collective bargaining, what re-
tiree healthcare benefits, if any, are to be provided for current employees.
The Board is empowered to oversee the process of collective bargaining,
but it has no authority to dictate the terms of the parties’ agreement. See
H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970). This, however, is what
the judge effectively did. He held that if the Respondent terminated re-
tiree healthcare benefits under DAP and MEDCAP, it had to provide an
alternative plan. Thus, he purported to dictate a term or condition of
employment the Respondent had not agreed to provide. (Nobody con-
tends that the Respondent’s 1987 statement that it did not visualize dis-
continuing retiree medical coverage constituted a binding agreement
never to do so.) The judge did so by applying equitable estoppel, but he
cited no authority, and we are aware of none, for the proposition that this
doctrine permits the Board to overstep the limits of its remedial authority.
In light of our waiver finding, we find it unnecessary to address the
Respondent’s argument that the Union was equitably estopped from de-
manding bargaining over the December 2006 changes.
13 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 con-
tractual references to “Employee Benefit Plans,” “Benefits Plan Book-
lets,” and “Benefit plans for the Company” incorporated the benefit
plans—including their reservation-of-rights clauses—into the contract
by reference). The Board, in contrast, has declined to find reservation-
of-rights language contained in a benefits-plan document incorporated
by reference into a collective-bargaining agreement unless the agreement
specifically incorporates that language by reference, or at least specifi-
cally 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 incorporate the AMP
[Amoco Medical Plan] documents let alone the reservation-of-rights lan-
guage from the AMP summary plan description”). We would be willing
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As discussed above, the DAP and MEDCAP plan doc-
uments have long contained provisions specifically grant-
ing the Respondent the right to unilaterally modify the
terms of those benefit plans or to terminate the plans en-
tirely.14 In addition, reservation-of-rights language was
referenced with respect to DAP in the IRP&P provision of
the collective-bargaining agreement in force between the
parties at the time DAP was implemented. Thus, the Un-
ion agreed that, as with other companywide plans, the unit
employees’ participation in DAP was “subject to the pro-
visions of such Plans.” The collective-bargaining agree-
ment did not expressly reference MEDCAP. However,
the CBA granted the Respondent the right to “make avail-
able to employees alternate hospital medical-surgical cov-
erage”; and the parties’ history of bargaining, during
which the Union accepted MEDCAP—expressly includ-
ing its reservation-of-rights language—as just such an “al-
ternate” plan, makes clear that the parties intended to grant
the Respondent the same rights to unilaterally change or
terminate MEDCAP as it had at its other facilities.15
Contractual references to DAP and MEDCAP were de-
leted following the Respondent’s implementation of
BeneFlex for active employees, but this merely reflected
the parties’ agreement that BeneFlex replaced DAP and
MEDCAP for active employees. The deletion of these ref-
erences 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 DAP and MEDCAP, and their participa-
tion continued to be subject, as it always had been, to the
terms of the plan documents, including the reservation-of-
rights clauses. Further, after the references to MEDCAP
and DAP were deleted from the CBA with the Union’s
acceptance of BeneFlex in 1993, the Respondent contin-
ued to make numerous unilateral changes to DAP and
MEDCAP without objection from the Union. In these cir-
cumstances, we find that the deletion of references to DAP
and MEDCAP from the parties’ collective-bargaining
agreement when BeneFlex was implemented does not de-
prive those references of their probative force and value in

to reconsider Board precedent regarding incorporation 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 pro-
ceeding. Our finding that the Union waived bargaining over the changes
at issue based on an amalgam of factors makes it unnecessary for us to
do so here.
14 The judge found that it is undisputed that the DAP and MEDCAP
plan documents contain reservation-of-rights clauses that make them ter-
minable by the Respondent.
15 As discussed above, Local 992 agreed to have the unit employees
at the Spruance facility participate in MEDCAP after lengthy bargaining
specifically over MEDCAP’s reservation-of-rights language. Indeed,
Local 992 suggested that the parties refer to MEDCAP in the IRP&P
article of the collective-bargaining agreement precisely because that
determining whether the Union waived its right to bargain
over the changes at issue here. As the parties’ subsequent
conduct demonstrates, the deletion of those references had
no effect on the parties’ understanding of their respective
rights and obligations.
We find that the language in the parties’ collective-bar-
gaining agreement discussed above supports a finding that
the Union waived its right to bargain over the 2006
changes to DAP and MEDCAP. As the Board stated in
Omaha World-Herald, supra, contractual references to a
benefit plan that contains language reserving to the em-
ployer the right to act unilaterally with respect to the plan
can support a finding of waiver, even if the references
would be insufficient, standing alone, to establish waiver
under existing Board precedent. In Omaha World-Herald,
the Board found that the following contract language sup-
ported 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 partici-
pation 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
eligibility of Employees toParticipate or remain a Partic-
ipant hereunder and to receive benefits under the Plan.”
357 NLRB at 1870–1871. The same reasoning applies here.
The parties’ collective-bargaining agreement identified DAP
and (implicitly) MEDCAP, but the terms of those plans can
only be understood by referring to the plan documents. Be-
cause those plan documents contain language reserving to the
Respondent the right to amend or terminate either plan, the
collective-bargaining agreement’s references to DAP and
MEDCAP support a finding of waiver.16
article contains language granting the Respondent the right to act unilat-
erally. The Respondent, however, did not want to refer to MEDCAP in
the IRP&P article because of the one-year notice language in that provi-
sion. Ultimately, the parties agreed to refer implicitly to MEDCAP in
the HMS provision discussed above. Viewed in light of the parties’ bar-
gaining history, and considering 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 2006
changes to MEDCAP.
16 In Omaha World-Herald, the Board also relied on contract language
excluding disputes over changes to the pension plan from the parties’
contractual grievance arbitration procedure. The Board explained that
because the plan covered all employees, not just bargaining-unit employ-
ees, the exclusion of such changes from grievance arbitration supported
E. I. DUPONT DE NEMOURS CO. 7
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 the parties’ negotiations regarding DAP
and MEDCAP strongly supports a finding of waiver.
The parties explicitly discussed the terms under which
DAP would be offered to unit employees. When the Un-
ion asked the Respondent to bargain DAP on a local basis,
the Respondent rejected this request and explained that
“since this 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, Management
will seriously consider their proposals.” The Union did
not offer a site-specific plan, and it agreed to accept DAP

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. The changes to MEDCAP and DAP were not arbitra-
ble—see fn. 8, supra—and the Respondent insisted on the right to make
unilateral changes to the plans to preserve its ability to maintain their
status as companywide plans offered on a uniform basis to represented
and unrepresented employees alike.
Citing Southern Nuclear Operating Co., 348 NLRB 1344 (2006), enf.
denied in relevant part 524 F.3d 1350 (D.C. Cir. 2008), and Mississippi
Power Co., 332 NLRB 530 (2000), enf. denied in relevant part 284 F.3d
605 (5th Cir. 2002), the judge found that the contractual references to the
plans were insufficient to establish an express waiver. Contrary to the
judge, these cases are distinguishable.
First, these cases did not involve 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. Here, by contrast, the collective-
bargaining agreement expressly referred to DAP. Importantly, it did so
in the CBA’s IRP&P article, where the Respondent’s right to act unilat-
erally is expressly recognized. The parties did not expressly refer to
MEDCAP in their agreement, but the Union bargained extensively over
the reservation-of-rights clause in the MEDCAP plan document, the Un-
ion agreed to accept MEDCAP subject to that clause, and MEDCAP was
referred to implicitly in the parties’ agreement.
Mississippi Power is even more clearly distinguishable. There, the
Board found that retention-of-rights language contained in the em-
ployer’s medical benefits plan did not constitute waiver of the union’s
right to bargain, where the union never expressly accepted that provision.
Here, the Union expressly accepted the reservation-of-rights provisions
in both the DAP and MEDCAP plans, as explained above.
Finally, we observe that neither Southern Nuclear Operating Co. nor
Mississippi Power was enforced by the court of appeals. Again, in
on the Respondent’s terms and to refer to DAP in the col-
lective-bargaining agreement’s IRP&P article.
Regarding MEDCAP, the Union agreed to participate in
that plan with its reservation-of-rights language after hav-
ing strenuously opposed that language during nearly a
year’s worth of bargaining. Thus, during bargaining ses-
sions in 1986, the Union repeatedly objected to the reser-
vation-of-rights language in MEDCAP, while the Re-
spondent held firm to its position that the plan had to in-
clude that language. The Union’s agreement to participate
in MEDCAP on the Respondent’s terms establishes that it
“consciously yielded” its position and agreed that the Re-
spondent had the right to act unilaterally with respect to
MEDCAP. See Southern Florida Hotel Assn., 245 NLRB
561, 567–568 & fn. 22 (1979) (finding that 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).17
denying enforcement in Southern Nuclear Operating Co., the United
States Court of Appeals for the District of Columbia Circuit held that
when a contract refers to a benefit plan, the entire plan document, includ-
ing the reservation-of-rights clause, is incorporated into the contract. See
also the D.C. Circuit’s decision in BP Amoco, supra. As noted above,
we would be willing to reconsider Board precedent regarding incorpora-
tion 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, but our finding that the Union waived bar-
gaining based on an amalgam of factors makes it unnecessary for us to
do so here.
17 The judge found that the parties’ bargaining history did not indicate
that the Union consciously relinquished its opposition to MEDCAP with
its reservation-of-rights language intact. For the reasons discussed
above, this finding is clearly erroneous: after lengthy opposition, the
Union capitulated and accepted the Respondent’s position regarding the
reservation-of-rights language. Further, the judge suggests that the par-
ties did not agree about why MEDCAP was referenced in the HMS arti-
cle of the CBA. As stated above, however, the Union and the Respond-
ent agreed to include an implicit reference to MEDCAP as an “alternate”
plan in the HMS article. Moreover, by the time the parties discussed
where in the CBA to refer to MEDCAP, the Union had already agreed
to accept MEDCAP, including its reservation-of-rights language. The
agreement to refer implicitly to MEDCAP in the HMS article in no way
changed that.
In support of his counterfactual finding that the parties did not fully
discuss and consciously explore the reservation-of-rights language, the
judge cited Davies Medical Center, 303 NLRB 195 (1991), enfd. 991
F.2d 803 (9th Cir. 1993); Reece Corp., 294 NLRB 448 (1989), and Gen-
eral Electric Co., 296 NLRB 844 (1989), enfd. 915 F.2d 758 (D.C. Cir.
1990). These cases are distinguishable. They involved either ambiguous
bargaining-history evidence and the effect of a contractual zipper clause
(General Electric), inapposite facts regarding production of requested
information during collective bargaining (Davies Medical Center (un-
ion’s past practice of not requiring production of requested information
until first bargaining session not a waiver of its right to request produc-
tion prior to the first session)), or unilateral action outside the scope of
the union’s bargaining waiver (Reece Corp. (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
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In sum, the parties’ bargaining history plainly demon-
strates that when it accepted DAP and MEDCAP on be-
half of the unit employees it represents, the Union had
fully discussed those plans, including their reservation-of-
rights provisions, and it consciously agreed to accept the
plans subject to those provisions, which reserved to the
Respondent the right to change the terms of the plans or to
terminate them altogether and to do so unilaterally. Ac-
cordingly, we find that bargaining history also supports a
finding of waiver.
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 602, 602
(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 failure to
object to a prior unilateral change can serve as a corrobo-
rating factor in a waiver analysis, see Omaha World-Her-
ald, 357 NLRB at 1872.
As discussed above, the record shows that after the Un-
ion accepted DAP and MEDCAP (including the reserva-
tion-of-rights language in those benefit plans), the Re-
spondent made over 50 unilateral changes to DAP and
MEDCAP, and the Union did not object to any of the Re-
spondent’s unilateral changes. The Union’s acquiescence
in these changes is evidenced by its failure to file a griev-
ance, unfair labor practice charge or other protest over any
of these changes until the 2006 change at issue here was
announced. The multitude of prior, uncontested unilateral
changes to DAP and MEDCAP strongly corroborate our
finding of waiver. Omaha World-Herald, 357 NLRB at
1872 (union’s failure to protest employer’s unilateral re-
moval of employees under 50 years old from its pension

transfers of other work)). Here, in contrast, the evidence of bargaining
history is clear, establishing that the Respondent conditioned participa-
tion in DAP and MEDCAP on the Union’s acceptance of the terms of
those plans, including their reservation-of-rights clauses, and the Union
agreed to accept DAP and MEDCAP on those terms. And unlike in
Reece Corp., the challenged December 2006 unilateral action was clearly
within the scope of the Union’s waiver of its right to bargain over
changes to DAP and MEDCAP.
18 Contrary to the judge, neither Mt. Clemens General Hospital, 344
NLRB 450 (2005), nor California Pacific Medical Center, supra, 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 acquies-
cence in numerous 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
acquiescence in the employer’s unilateral changes. 344 NLRB at 459-
460. In any event, Mt. Clemens General Hospital is not precedential on
plan supported a finding that the union waived its right to
bargain over employer’s unilateral freezing of benefit ac-
cruals four years later).18
The judge acknowledged this past practice of unilateral
changes to benefits, but nonetheless found that the Re-
spondent’s reliance on past practice as evidence of waiver
was unavailing because the Respondent and the Union had
engaged in a “mixed bag of transactions” regarding
changes to DAP and MEDCAP. Specifically, the judge
stated that while, in some instances, the Union did not re-
quest bargaining, in others it asked for information and/or
bargaining after the Respondent had implemented the
changes.
We disagree with the judge’s characterization of the ev-
idence. The record demonstrates that the Respondent
never deviated from its position that it had no duty to bar-
gain about changes to DAP and MEDCAP. Significantly,
although the judge cited examples of purported “bargain-
ing” between the Respondent and the Union, the examples
do not relate to changes to DAP or MEDCAP, let alone
any sort of bargaining over such changes. Rather, the ex-
amples cited by the judge relate to the BCBS local plan at
the Spruance facility or to BeneFlex. Whatever bargain-
ing may or may not have occurred with respect to BCBS
or BeneFlex, it has no bearing on the DAP and MEDCAP
changes at issue here.19
The judge’s reliance on information requests is also un-
availing. At times, the Union did request information
about changes to DAP or MEDCAP, and the Respondent
generally provided the requested information. In doing so,
however, the Respondent reiterated that it did not have to
negotiate over changes to companywide benefit plans, and
the Respondent never bargained over any of the changes
it made to the DAP and MEDCAP plans. Indeed, the Un-
ion’s requests for information about changes to DAP and
MEDCAP were not requests to bargain about the changes
the issue of waiver because there were no exceptions to the judge’s
waiver finding. See 344 NLRB at 450 fn. 2.
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 ex-
plained above, we find that it does.
19 The judge erroneously refers to a September 1, 1987 exchange be-
tween the Respondent and the Union as evidence of bargaining over pro-
posed changes in DAP coverage. The record establishes, however, that
the Respondent was merely proposing a “clearing up of the Plan lan-
guage[,]” not a change in coverage. Other examples cited by the judge
do not involve DAP or MEDCAP at all but the BCBS local plan or Bene-
Flex.
E. I. DUPONT DE NEMOURS CO. 9
themselves. Cases in which the Board has found that a
request for information was tantamount to a bargaining re-
quest have involved employers that had refused to recog-
nize the union making the information request. See, e.g.,
Eldorado, Inc., 335 NLRB 952, 954 (2001). Here, in con-
trast, the Respondent has recognized the Union as the unit
employees’ bargaining representative for decades. Fur-
ther, after the Respondent provided the Union with the re-
quested information, it proceeded to implement the
changes unilaterally. In short, the Respondent’s willing-
ness to provide the Union with information regarding
changes to DAP and MEDCAP does not support a finding
that the Respondent bargained with the Union over those
changes.
Response to Dissent
Our dissenting colleague contends that no valid waiver
has been shown on these facts. In the dissent’s view, the
deletion of MEDCAP and DAP from the parties’ agree-
ment in 1993 is fatal to any waiver argument. In support,
our colleague asserts that article II, section 3 of the con-
tract precludes any reliance on prior agreements or “other
extra-contractual documents” in deciding this case. The
dissent also finds the bargaining history and past practice
evidence wanting, both on their own terms and because
some of that evidence predates the deletion of MEDCAP
and DAP from the parties’ agreement. In sum, the dissent
denies that the facts of this case, even taken as a whole,
are substantial evidence of “clear and unmistakable”
waiver. We respectfully disagree.
First, the evidence in this case overwhelmingly demon-
strates that MEDCAP and DAP, as corporatewide plans,
were offered subject to the Respondent’s reservation of
the right to alter or terminate the plans, and that the Union
accepted them on that basis. And necessarily so: if the
Respondent provided different benefits under MEDCAP
and DAP at the Spruance facility than elsewhere,
MEDCAP and DAP would cease to be companywide
plans. The Respondent could not reasonably offer
MEDCAP and DAP under one set of terms for unit em-
ployees at Spruance and under a different set of terms for

20 Alamo Rent-A-Car, 362 NLRB 1091 (2015), enfd. sub nom. Enter-
prise Leasing Co. of Florida v. NLRB, 831 F.3d 534 (D.C. Cir. 2016),
cited by the dissent, is distinguishable on this basis. There, the employer
discontinued a short-term disability (STD) plan referenced in the parties’
agreement, then sought to rely on a contractual reservation-of-rights
clause that was applicable, by its terms, only to that plan to justify its
subsequent elimination of STD benefits altogether. Here, the situation is
the reverse: the plans continued in force while the contractual references
to them were deleted.
Tesoro Refining & Marketing Co., 360 NLRB 293 (2014), another
case cited by the dissent, is also 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,
the thousands of employees at its other facilities. The par-
ties well understood the difference between local plans
bargained on a local basis and companywide plans offered
solely on a companywide basis, and the Union plainly ac-
cepted MEDCAP and DAP as companywide plans. Noth-
ing in the parties’ dealings remotely suggests that they
ever agreed to change their status as companywide plans.
Yet that is precisely how the dissent would have it, by in-
sisting that MEDCAP and DAP could not be changed at
Spruance without first bargaining with the Union to agree-
ment or impasse. Respectfully, it is the dissent, not we,
whose position is unsupported by substantial evidence.
Second, we cannot agree with our colleague that the de-
letion of MEDCAP and DAP from the parties’ agreement
had the decisive significance our colleague ascribes to it.
References to those plans were removed from the agree-
ment when BeneFlex took their place for active employ-
ees. It is undisputed, however, that the Respondent con-
tinued to offer MEDCAP and DAP benefits for retirees
after the relevant provisions were deleted from the con-
tract.20 The dissent’s position is that the obligation to pro-
vide those benefits continued, while the right to make uni-
lateral changes to the plans did not. There is no valid basis
for ascribing such dispositive significance to a technical
change to the contract 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 article
II, section 3 of the parties’ agreement requires a different
result. That provision, which the dissent terms an “inte-
gration clause,” provides that “[t]his Agreement consti-
tutes the entire agreement between the parties hereto as of
the execution date hereof” and allows for “any supple-
ment” to become part of the Agreement if “executed in the
same manner as this Agreement.” Our colleague contends
that this provision precludes “reaching back to sweep the
DAP and MEDCAP ‘reservation-of-rights’ clauses into
the current agreement” or relying on those clauses “to alter
the parties’ agreement that was in effect when the Re-
spondent made the changes at issue.”
Initially, we observe that no party has advanced this ar-
gument, nor was it considered by the judge. There is thus
despite the following language incorporated into the parties’ collective-
bargaining agreement: “Should future circumstance require substantial
benefits plans modifications, the Company agrees to notify the Union
and engage in appropriate discussion/bargaining. Should the parties be
unable 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—re-
ferred to and reinforced the employer’s bargaining obligation. Id. at 294.
The parties in this case have never agreed to any provision, in their col-
lective-bargaining agreement or otherwise, that similarly limits the Re-
spondent’s right to make unilateral changes to MEDCAP and DAP.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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’ CBA nor reinserted the
MEDCAP and DAP reservation-of-rights clauses into it.
Instead, we have found that the Union’s acceptance of
those provisions, when it agreed that MEDCAP and 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’ entire
course of dealing with each other regarding these plans
over the past 43 years. Our colleague’s effort to confine
the analysis to the events and circumstances present in
2006, in contrast, does not.
Conclusion
We find that the parties’ agreements, bargaining history,
and past practice, taken together, make clear that the Re-
spondent offered, and the Union accepted, MEDCAP and
DAP as companywide benefit plans in which unit employ-
ees would participate on the same terms as all of the Re-
spondent’s other employees, subject to the Respondent’s
reservation of the right to make changes to or terminate
the plans on a companywide basis. Under the reservation-
of-rights provisions in those plans, the Respondent had the
right to amend or discontinue DAP and MEDCAP unilat-
erally. The Respondent exercised that right in December
2006 as it had many times before by making changes to
DAP and MEDCAP. For the reasons explained above, the
Respondent was not obligated to bargain with the Union
prior to making these changes because the Union had
clearly and unmistakably waived its right to bargain over
them. Accordingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. June 21, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
In August 2006, the employer here unilaterally elimi-
nated longstanding future dental and healthcare retirement
benefits for incoming bargaining unit employees. While
the employer had made unilateral benefit changes before,
the elimination of these benefits altogether was obviously
a first. Not surprisingly, the Union demanded bargaining
over this dramatic change, which indisputably concerned
a mandatory subject of bargaining under the National La-
bor Relations Act. The Respondent refused. This case
turns on whether the Union clearly and unmistakably
waived its right to bargain over the elimination of the ben-
efits. Consistent with the overriding statutory policy fa-
voring collective bargaining, that standard is—or was un-
til today—a stringent one. In finding a waiver, the major-
ity relies on a variety of factors, but as I will explain, even
added together they do not amount even to substantial ev-
idence supporting waiver, given the legal standard that
must be satisfied. Perhaps most remarkably, the majority
relies on so-called “reservation-of-rights” clauses con-
tained 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-bargain-
ing agreement. This gap, in turn, cannot be bridged here
by the evidence related to bargaining history or past prac-
tice, which does not show–at least with the required cer-
tainty–that the Union gave up its right to bargain over the
elimination of benefits. Simply put, a clear and unmistak-
able waiver must be . . . clear and unmistakable. That is
simply not the case here.
I.
This case turns on its facts, and they are essentially un-
disputed. The key details, spanning decades, are these: (1)
the relevant collective-bargaining agreements have not re-
ferred to the benefit plans involved here since 1993; (2)
the agreements have always contained an integration
clause; and (3) the benefits at issue were unilaterally
changed many times, but never eliminated altogether – the
change that led to this unfair labor practice case.
For over 60 years, the Respondent has had a collective-
bargaining relationship with the Union at the Respond-
ent’s Ampthill, Virginia facility (the Spruance facility).
At all material times, the Union represented two units at
the Spruance facility, each of which was covered by a col-
lective-bargaining agreement. The collective-bargaining
agreements in effect at the time of the Respondent’s uni-
lateral change were the Production and Maintenance
(P&M) collective-bargaining agreement (effective Sep-
tember 1, 1999) and the Clerical, Technical, and Office
employees (CT&O) collective-bargaining agreement
E. I. DUPONT DE NEMOURS CO. 11
(effective October 1, 2000). As relevant to the present
case, those agreements contained identical provisions.1
Generally, the Respondent’s active employees were
covered by a corporate-wide benefit plan called BeneFlex,
described in article VII of the collective-bargaining agree-
ment (“Industrial Relations Plans and Practices”). The
agreement also contained a so-called “integration” clause,
stating: “This Agreement constitutes the entire Agreement
between the parties hereto as of the execution date hereof.
However, any supplement which may hereafter be mutu-
ally agreed upon between the parties, when executed in the
same manner as this Agreement, shall become and be part
of this Agreement.”
By contrast, the parties stipulated that the agreement did
not address or even reference dental and healthcare bene-
fits afforded to then-current retirees and future retirees.
As of 2006, then-current retirees and employees hired be-
fore January 1, 2007, were receiving or could expect to
receive retiree dental and healthcare benefits through the
Dental Assistance Plan (DAP) and the Medical Care As-
sistance Plan (MEDCAP), which had been in place for 30
and 20 years, respectively. It is the Respondent’s unilat-
eral elimination of future retirement benefits under DAP
and MEDCAP for employees hired on or after January 1,
2007, that is at issue in the present case.
A brief history of the parties’ past negotiations and col-
lective-bargaining agreements is useful to better under-
stand how the applicable agreement ended up incorporat-
ing BeneFlex, but not DAP or MEDCAP.2
A.
In 1976, with the Union’s consent, the Respondent in-
troduced DAP at the Spruance facility. The relevant plan
document contained a reservation-of-rights clause, also
referred to by the parties as a management-rights clause,
that stated:
The Company reserves the sole right to amend or dis-
continue this Plan at its discretion by action of the Exec-
utive Committee. Any change which has the effect of
reducing or terminating benefits hereunder will not be
effective until one year following announcement of such
change by the Company.3
On May 13, 1976, the parties agreed to include DAP
among the Respondent’s corporate-wide benefit plans

1 As the two units’ collective-bargaining agreements are identical with
respect to the relevant contract provisions, I will refer to them collec-
tively.
2 Much of this history is described in far greater detail in the judge’s
decision.
3 The reservation-of-rights clause has remained unchanged since
1976, except for the deletion of the reference to Executive Committee
action, and is contained in the 2005 DAP Plan Document. Similar
listed in article VII (“Industrial Relations Plans and Prac-
tices”) of the then-applicable collective-bargaining agree-
ment, “subject to the provisions of such Plans and Prac-
tices and to such rules, regulations and interpretations as
existed prior to the signing of this agreement.” Article VII
further provided that “any change in these Plans and Prac-
tices which has the effect of reducing or terminating ben-
efits will not be made effective until one (1) year after no-
tice to the UNION by the COMPANY of such change.”
MEDCAP had its origins in the mid-1980s. Until 1985,
Spruance employees were covered by a local Blue Cross
Blue Shield plan described in the then-applicable collec-
tive-bargaining agreement. In September 1985, the par-
ties began to discuss alternative plans that would address
the rising costs of healthcare coverage. In February 1986,
the Respondent proposed to the Union that unit employees
participate in MEDCAP, a corporate-wide medical benefit
plan administered by Aetna that the Respondent had intro-
duced at some of its other facilities. Similar to DAP, the
relevant plan document contained a reservation-of-rights
clause, 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 Company.4
The Union was reluctant to accept MEDCAP because
of this clause. The Respondent insisted, however, that the
clause was necessary and that it “would not present a cor-
porate plan without [it].” In September 1986, after over
10 months of bargaining, the Union finally accepted
MEDCAP with its reservation-of-rights clause.
B.
Thus, as of 1986, the parties’ collective-bargaining
agreement provided employees the opportunity to partici-
pate in both DAP and MEDCAP, although the agreement
referenced these benefits in different ways. Article VII of
the agreement included DAP and its plan document,
which contained the reservation-of-rights clause, in its list
of corporate benefit plans subject to a 1-year notice re-
quirement. By contrast, for reasons no longer material, the
agreement contained a less specific reference to
MEDCAP. After discussing several possibilities, the
language appears in the 2003 version of the DAP’s Summary Plan De-
scription (SPD).
4 2005 MEDCAP Plan Document, Art. XX (Originally Adopted–Jan-
uary 1, 1983, Last Amended April 21, 2005). Although the Plan Docu-
ment from 1986 is not in the record, it is undisputed that the reservation-
of-rights language in the Plan Document has remained unchanged since
the plan was adopted. The judge also noted that similar language appears
in the 2005 version of the Summary Plan Description (SPD).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
parties agreed to refer to MEDCAP, without naming it, as
an “alternate” healthcare benefit plan:
The Company may make available to employees alter-
nate hospital and medical-surgical coverage plans, and
any employee may elect such alternate coverage in lieu
of the coverage described in the [agreement].
That remained the status quo for the next 7 years.
In 1993, the parties agreed to remove the references to
DAP and MEDCAP from their collective-bargaining
agreement because the Respondent had introduced a new
corporate-wide dental and medical plan called BeneFlex
to cover employees while they remained actively em-
ployed.5 The dental and healthcare of benefits of then-
current retirees and of future retirees continued to be cov-
ered by DAP and MEDCAP.
C.
The ongoing availability of DAP and MEDCAP did not
mean that those benefits continued unchanged, however.
Every year from 1987 until 2006, the Respondent changed
aspects of both DAP and MEDCAP, all without challenge
by the Union. There were changes to premiums, scope of
coverage, and related features of the plans. Yet, both DAP
and MEDCAP remained in place for all then-current and
future retirees.
The availability of DAP and MEDCAP for all future re-
tirees ended abruptly on August 28, 2006. Without con-
sulting or bargaining with the Union, the Respondent no-
tified the Union that it would eliminate DAP and
MEDCAP retirement benefits for new employees hired on
or after January 1, 2007. The Union responded by de-
manding bargaining, but the Respondent refused. Instead,
the Respondent immediately announced the change to bar-
gaining-unit employees and implemented the change on
December 20, 2006. The Union unsuccessfully attempted
to pursue a grievance6 and, subsequently, filed the unfair
labor practice charge giving rise to this case.
D.
As indicated above, the Respondent has defended its
unilateral action on the theory that the Union waived its
right to bargain over the wholesale elimination of future
DAP and MEDCAP retirement benefits for newly hired
employees. Specifically, the Respondent has relied on the
“reservation-of-rights” clauses contained in the DAP and
MEDCAP plan documents. The Respondent acknowl-
edges that those clauses do not appear in the applicable
collective-bargaining agreement, but it asserts that the Un-
ion’s waiver nevertheless may be found in its initial

5 As did DAP and MEDCAP, the BeneFlex plan document contained
its own reservation-of-rights clause.
agreement to participate in DAP in 1976 and MEDCAP in
1986, the parties’ bargaining history, and the Union’s ac-
quiescence in the Respondent’s various changes to DAP
and MEDCAP over the years. My colleagues agree that
this “amalgam” of circumstances establishes waiver, but
as I will explain, they are mistaken.
II.
The legal principles governing this case are well estab-
lished and not in dispute. Properly applied to the record
evidence, they should result in a finding that the Respond-
ent violated its statutory duty to bargain when it unilater-
ally eliminated MEDCAP and DAP benefits.
The central policy of the National Labor Relations Act,
reflected in Section 1, is to “eliminate the causes of certain
substantial obstructions to the free flow of commerce
. . .by encouraging the practice and procedure of collective
bargaining . . . . 29 U.S.C. Section 151; see also NLRB v.
C & C Plywood Corp., 385 U.S. 421, 430 (1967). To fur-
ther this policy, certain terms and conditions of employ-
ment are designated as mandatory subjects of bargaining
and so an employer may not change them unilaterally, ab-
sent a valid defense. See NLRB v. Katz, 369 U.S. 736, 743
(1962). The provision of future retirement healthcare ben-
efits, such as DAP and MEDCAP, for active employees is
one of those mandatory subjects of bargaining. See Chem-
ical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157,
180 (1971). This is true even though the collective-bar-
gaining agreement in effect at the time the Respondent
made the relevant changes did not specifically provide for
DAP and MEDCAP. See Borden, Inc., 196 NLRB 1170,
1175 (1972); T.T.P. Corp., 190 NLRB 240, 244 (1971).
The Respondent’s duty to bargain remained in force at all
relevant times. See Provena St. Joseph Medical Center,
350 NLRB 808, 811 (2007). This scheme promotes the
peaceful resolution of disputes through bargaining and
avoids the potentially destabilizing effects of self-help. Id.
The Board’s waiver doctrine, in turn, imposes a heavy
burden on an employer seeking to justify unilateral action.
As the Provena Board explained, “[t]he clear and unmis-
takable waiver standard . . . requires bargaining partners
to unequivocally and specifically express their mutual in-
tention to permit unilateral employer action with respect
to a particular employment term, notwithstanding the stat-
utory duty to bargain that would otherwise apply.” Id.
Under this standard, waiver is not lightly inferred. This
high bar to bypassing bargaining again “reflects the
Board’s policy choice, grounded in the Act, in favor of
6 The parties stipulated that the modifications to MEDCAP and DAP
were nonarbitrable because neither MEDCAP nor DAP was referred to
in the parties’ collective-bargaining agreement.
E. I. DUPONT DE NEMOURS CO. 13
collective bargaining concerning changes in working con-
ditions that might precipitate labor disputes.” Id.7
The Board’s precedent teaches that a waiver may arise
from an express provision in the parties’ collective-bar-
gaining agreement, by the conduct of the parties (includ-
ing bargaining history and past practice), or by a combi-
nation of these factors. See, e.g., Omaha World-Herald,
357 NLRB 1870 (2011) (“amalgam” of factors supported
finding that the union had waived its right to bargain over
certain changes to the employer’s pension plan). But in
this case, even the sort of “amalgam” of factors cited in
Omaha World-Herald—a decision relied upon by the ma-
jority—does not support a waiver finding.8
Whether one looks at the parties’ collective-bargaining
agreement that was in effect in 2006, their bargaining his-
tory, their past practices, or any combination of these fac-
tors, there has been no similar waiver in the present case.
A.
It is undisputed that the collective-bargaining agree-
ment in effect when the Respondent announced its termi-
nation of future DAP and MEDCAP benefits for newly
hired employees did not reference either of those benefits
or their respective plan documents. Board precedent es-
tablishes that because the clauses are not in the collective-
bargaining agreement, they cannot be relied on to find a
clear and unmistakable waiver.9 Here, all references in the
collective-bargaining agreement to DAP and MEDCAP
had been removed from the agreement in 1993–13 years
before the Respondent unilaterally eliminated the bene-
fits.10 The Respondent has not identified any other provi-
sion of the applicable collective-bargaining agreement
that authorized it to unilaterally terminate the benefits.
Even so, my colleagues maintain that the applicable col-
lective-bargaining agreement does support a waiver find-
ing, relying primarily on the “amalgam” approach

7 See also Georgia Power Co., 325 NLRB 420, 420 (1998), enfd.
mem. 176 F.3d 494 (11th Cir. 1999); Universal Security Instruments,
Inc., 250 NLRB 661, 662 (1980), enfd. in part denied in part, 649 F.2d
247, 256 (4th Cir. 1981) (waiver will not be readily inferred).
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.
9 See Mary Thompson Hospital, 296 NLRB 1245, 1249 (1989), enfd.
943 F.2d 741 (7th Cir. 1991); Amoco Chemical Co., 328 NLRB 1220
discussed in Omaha World-Herald, supra. But Omaha
World-Herald presented a materially different set of cir-
cumstances. Most glaringly, in Omaha World-Herald,
every “contractual” element supporting waiver was found
in the collective-bargaining agreement in effect at the time
the employer changed the pension plan, not in past or de-
leted contract provisions, such as those my colleagues rely
on here. Thus, the applicable agreement in Omaha World-
Herald specifically referenced "the retirement plan,"
thereby incorporating the “reservation-of-rights clause” in
the plan document. Here, to repeat, the agreement did not
reference DAP and MEDCAP at all.
To counter the absence of such references, my col-
leagues assert that “the deletion of references to DAP and
MEDCAP from the parties’ collective-bargaining agree-
ment when BeneFlex was implemented does not deprive
those [deleted] references of their probative force and
value in determining whether the Union waived its right
to bargain over the changes at issue here.” But the dele-
tion is, of course, crucial, particularly because our prece-
dent clearly holds that waiver cannot be gleaned from si-
lence in the applicable agreement. See Centura Health St.
Mary-Corwin Medical Center, 360 NLRB 689, 689 & fn.1
(2014); King Broadcasting Co., 324 NLRB 332, 337
(1997); Elizabethtown Water Co., 234 NLRB 318, 320
(1978). The language included in, or omitted from, a col-
lective-bargaining agreement (or any other contract) obvi-
ously matters, and the deletion of references to DAP and
MEDCAP necessarily has consequences here. If the Re-
spondent wanted to retain its contractual right to make uni-
lateral changes in the plans, then it should have taken care
to ensure that references to the plans remained in the
agreement.
On that score, the parties’ express reference to BeneFlex
in the applicable agreement demonstrates that they
(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).
10 Notably, the facts here fail to satisfy the more lenient standard ap-
plied by the District of Columbia Circuit (and apparently favored by my
colleagues) for determining whether a benefit plan document has been
incorporated by reference into a contract. There can be no basis for find-
ing a contractual waiver in the absence of any reference to DAP or
MEDCAP in the collective-bargaining agreement. See BP Amoco Corp.
v. NLRB, supra, 217 F.3d at 873–874; Southern Nuclear Operating Co.
v. NLRB, 524 F.3d 1350, 1359–1360 (D.C. Cir. 2008) (rejecting em-
ployer’s argument where collective-bargaining agreements contained no
language referencing plans that contained a reservation-of-rights clause).
Nor, as my colleagues concede, does this case implicate the “contract
coverage” doctrine applied by some courts, because DAP and MEDCAP
are not mentioned in the relevant collective-bargaining agreement. See
Provena, supra, 350 NLRB at 811 fn. 17 (discussing “contract coverage”
doctrine and citing NLRB v. Postal Service, 8 F.3d 832 (D.C. Cir. 1993)).
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
understood both how to incorporate a benefit plan into the
agreement—and the significance of doing so.11 Accord-
ingly, as Board precedent illustrates, the parties’ deletion
of DAP and MEDCAP from their agreement does, indeed,
deprive the reservation-of-rights provisions attached to
those plans of their probative force and value.12 A similar
scenario arose in Alamo Rent-A-Car, 362 NLRB No. 135,
slip op. at 2 (2015), enfd. sub nom. Enterprise Leasing Co.
of Florida v. NLRB, 831 F.3d 534 (D.C. Cir. 2016), in
which the collective-bargaining agreement referred to a
Comprehensive Group Insurance plan, which included
reservation of rights language. At one time, the employer
had provided short-term disability (STD) benefits as part
of that broader plan. But the employer subsequently de-
cided to provide STD benefits through alternate means,
outside the comprehensive insurance plan. Then, 5
months after making that decision, the employer elimi-
nated the STD benefits altogether. In those circumstances,
the Board rejected the employer’s argument that “reserva-
tion-of-rights” language in the Comprehensive Group In-
surance plan document authorized it to eliminate the STD
benefits without bargaining with the union. As relevant
here, the Board explained that because the STD benefits
were no longer part of the broader insurance plan, the con-
tract’s incorporation of that plan and its “reservation-of-
rights” language could not be relied upon as to the STD

11 My colleagues 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 present case
concerns only the future dental and healthcare benefits when they retired.
BeneFlex never covered those future benefits, which were always pro-
vided 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.
12 See Tesoro Refining & Marketing Co., 360 NLRB 293, 294 (2014)
(finding no waiver because reservation-of-rights clause in plan docu-
ments incorporated into collective-bargaining agreement was superseded
by subsequent contractual side letter not containing such language). This
consequence is consistent, meanwhile, with well-established Board prec-
edent that a management-rights clause or a “reservation-of-rights” clause
embodied in an external document does not survive the expiration of the
collective-bargaining agreement containing or incorporating by refer-
ence the relevant clause, absent evidence of the parties’ contrary intent.
See United States Can Co., 305 NLRB 1127, 1127 fn.7 (1992), enfd. 984
F.2d 864 (7th Cir. 1993); Control Services, 303 NLRB 481, 484 (1991),
enfd. mem. 961 F.2d 1568 and 975 F.2d 1551 (3d Cir. 1992); Omaha
World-Herald, above, 357 NLRB at 1872 (applying principle to external
“reservation-of-rights” language that was incorporated by reference into
the applicable agreement). The majority’s effort to distinguish Tesoro
merely reinforces the principle that reservation-of-rights language not in-
corporated in the agreement cannot authorize unilateral changes. The
Board’s comparison of contractual language in Tesoro to that in Omaha
World-Herald does nothing to change this basic rule. And the majority’s
benefits. Similarly, in this case, the parties’ decision to
eliminate DAP and MEDCAP from their collective-bar-
gaining agreement means that the Respondent could no
longer rely on the “reservation-of-rights” clauses con-
tained in the relevant plan documents.13
Similarly, in Omaha World Herald, supra, the Board’s
reliance on the parties’ agreement that pension plan
changes would not be arbitrable was grounded in the ap-
plicable agreement and the recognition that this contrac-
tual exclusion signaled the employer’s intention to pre-
serve its ability to make uniform changes for all repre-
sented and unrepresented employees. The majority at-
tempts to apply the same reasoning here, as changes to
DAP and MEDCAP were not arbitrable. But there was no
express statement excluding DAP and MEDCAP from ar-
bitration proceedings, nor was there an explanation of in-
tent in the controlling contract.14 In similar circum-
stances, the Board has found that the mere existence of a
provision excluding certain subjects from a contractual
grievance and arbitration procedures is insufficient to find
a “clear and unmistakable waiver.”15 Moreover, the mere
fact that DAP and MEDCAP continued to be available to
both represented and unrepresented employees does not,
without more, establish waiver, as Board decisions hold.16
Finally, in considering all of the surrounding circum-
stances, there is the matter of the agreement’s integration
argument that because DAP and MEDCAP continued to be offered de-
spite 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.
13 The majority also unsuccessfully tries to distinguish Southern Nu-
clear Operating Co., 348 NLRB 1344 (2006), enf. granted in part, denied
in part 524 F. 3d 1350 (D.C. Cir. 2008), and Mississippi Power Co., 332
NLRB 530 (2000), enf. granted in part, denied in part and remanded, 284
F.3d 605 (5th Cir. 2002), by claiming that there is contractual language
here that was lacking in those cases–, omitting the key fact that the con-
tractual language expressly referring to DAP and MEDCAP was absent
from the agreement in effect when the Respondent made its unilateral
changes.
14 In denying the Union’s motion to compel arbitration of the Re-
spondent’s 2006 changes to a number of benefit plans, including DAP
and MEDCAP, a court recognized that the nonarbitrability of disputes
over DAP and MEDCAP may be explained by the simple fact that DAP
and MEDCAP were no longer in the parties’ collective-bargaining agree-
ments, unlike the other benefit plans listed in art. VII of the collective-
bargaining agreement. See E.I. DuPont de Nemours & Co. v. Ampthill
Rayon Workers, Inc., 516 F.Supp. 2d 588, 596 (E.D. Va. 2007), affd.
mem. 290 Fed.Appx. 607 (4th Cir. 2008).
15 See Bonnell/Tredegar Industries, 313 NLRB 789, 791 (1994), enfd.
46 F.3d 339 (4th Cir. 1995); Cf. Unit Drop Forge Division, 171 NLRB
600, 601 (1968) (mere existence of grievance and arbitration procedures
will not by itself warrant a finding that the union waived its right to bar-
gain on unilateral changes), enfd. 412 F.2d 108 (7th Cir. 1969).
16 See Omaha World-Herald, above, 357 NLRB at 1871 & fn. 5 (cit-
ing Rockford Manor Care Facility, 279 NLRB 1170, 1172-1173 (1986));
Mid-Continent Concrete, 336 NLRB 258, 259 (2001).
E. I. DUPONT DE NEMOURS CO. 15
clause, which absolutely negates the majority’s effort to
find a waiver by reading prior agreements and other extra-
contractual documents into the agreement that actually
was in effect when the unilateral change was made. The
integration clause recites:
This Agreement constitutes the entire Agreement be-
tween the parties hereto as of the execution date hereof.
However, any supplement which may hereafter be mu-
tually agreed upon between the parties, when executed
in the same manner as this Agreement, shall become and
be part of this Agreement.
This provision clearly precludes reaching back to sweep the
DAP and MEDCAP “reservation-of-rights” clauses into the
current agreement. Those clauses were not “supplement[s]
which may hereafter [emphasis added] be mutually agreed
upon,” and neither was “executed in the same manner as th[e]
Agreement.” To the contrary, after 1993 the “reservation-of-
rights” clauses were and remained matters that the parties had
deliberately chosen not to include in their integrated collec-
tive-bargaining agreement. Thus, the clauses cannot be relied
upon to alter the parties’ agreement that was in effect when
the Respondent made the changes at issue.17
In sum, viewed in light of Board precedent, the collec-
tive-bargaining agreement here provides no substantial
evidence supporting the majority’s waiver finding. The
agreement made no reference to the DAP and MEDCAP
plans, much less to the plan documents—and had not con-
tained such a reference for many years. What the agree-
ment did contain, however, was an integration clause,
which precludes reliance on extra-contractual documents
as evidence of the parties’ understanding.
B.
The parties’ relevant bargaining history provides no
more support for the majority’s waiver finding. Whatever
one makes of the parties’ negotiations culminating in DAP
in 1976 and MEDCAP in 1986, that bargaining history
simply is not relevant to the present case. Just as the

17 Cf. Carr v. Philips Electronics N. Am. Corp., 41 Fed.Appx. 637,
641–642 (4th Cir. 2002) (barring extrinsic evidence where the agreement
specifically disavowed supplemental oral agreement.
18 See General Electric Co., 296 NLRB 844, 844 (1989), enfd. per
curiam 915 F.2d 738 (D.C. Cir. 1990) (unpublished decision); Graymont
PA, Inc., 364 NLRB No. 37, slip op. at 3 (2016) (finding no evidence
that the parties “fully discussed and consciously explored” the subjects
“during bargaining over the current contract language” (emphasis
added)); Reece Corp., 294 NLRB 448, 451 (1989) (finding no waiver
after evaluating "the prior negotiations"); Indianapolis Power Co., 291
NLRB 1039 (1988) (finding no waiver where bargaining history showed
that parties agreed to disagree over the scope of a no-strike clause), enfd.
898 F.2d 524 (7th Cir. 1990); McDonnell Douglas Corp., 224 NLRB
881, 895 (1976) (considering “evidence of the negotiations which re-
sulted in the agreement”).
agreement that was in effect when the Respondent made
the DAP and MEDCAP changes at issue is the only oper-
ative document for analyzing whether there was a contrac-
tual waiver, only the bargaining history leading to that
agreement is relevant here. The Board’s decisions make
clear that the whole point of looking to bargaining history
is to shed light on the relevant contract language, when its
terms alone may be too ambiguous to establish waiver, but
the parties’ negotiations demonstrate that the language
was, in fact, intended to give the employer the right to act
unilaterally (and to waive the union’s right to bargain).18
To be sure, this means that the Board may look back to
the bargaining history of new provisions or that of provi-
sions that have been continuously maintained in succes-
sive agreements.19 But the parties’ bargaining history with
respect to DAP and MEDCAP falls into neither category.
As described, the parties agreed to delete all contractual
references to DAP and MEDCAP in 1993, some 13 years
before the Respondent made the unilateral changes at is-
sue here. The history behind those discarded provisions
therefore sheds no light on whether the Union waived its
right to bargain in the agreement in effect at the operative
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 provisions
was a reassertion of the Union’s statutory right to bar-
gain.20
At the very least it is clear that, under well-established
Board law, any waiver reflected in the deleted provisions
expired with the last agreements referencing DAP and
MEDCAP. And, of course, the parties’ subsequent agree-
ments never renewed or reincorporated either benefit plan,
certainly not with respect to active employees’ future re-
tirement benefits. As a result, the parties’ bargaining his-
tory cannot possibly provide even substantial evidence
supporting a finding of clear and unmistakable (not cloudy
and debatable) waiver.
19 See, e.g., Lear Siegler, 293 NLRB 446, 448 (1989) (considering
bargaining history of provision, noting its presence in contract since
1960s); General Tire & Rubber Co., 274 NLRB 591, 593 (1985) (finding
no bargaining history to interpret contract provision continuously main-
tained through present; finding no waiver in current contract’s silence
regarding benefits), enfd. 795 F.2d 585 (6th Cir. 1986).
20 Compare American Cyanamid Co., 246 NLRB 87 (1979) (examining
25-year-old bargaining history to resolve disagreement on interpreta-
tion of a no-strike clause maintained in current collective-bargaining
agreement), with King Broadcasting Co., 324 NLRB 332, 337 (1997)
(finding no clear and unmistakable waiver in the removal of a contrac-
tual restriction in an earlier contract, based on bargaining history of the
current contract).
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C.
Last, urged on by the Respondent, my colleagues mis-
takenly rely on the parties’ past practice.21 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. But for two independently sufficient
reasons, that history does not support finding a waiver
with respect to the Respondent’s decision to discontinue
those future retirement benefits for newly hired employ-
ees.
First, it is well settled that “a union’s acquiescence in
previous unilateral changes does not operate as a waiver
of its right to bargain over such changes for all time.” Cat-
erpillar, Inc., 355 NLRB 521, 522 (2010), enfd. per cu-
riam, 2011 WL 2555757 (D.C. Cir. May 31, 2011) (un-
published decision); see also Olean General Hospital, 363
NLRB No. 62, slip op. at 3–4 (2015). Second, a history
of unilateral changes is material only to the extent that
there is a “thread of similarity running through and link-
ing” the changes. Caterpillar, 355 NLRB at 522. Here,
although the Respondent made changes to the premiums,
scope of coverage, and benefits under DAP and
MEDCAP, the Respondent has not established that those
changes were all similar in scope and magnitude. In any
event, the prior changes were certainly not similar in scope
and magnitude to the wholesale elimination of these ben-
efits for an entire class of employees.
My colleagues, citing Owens-Corning Fiberglas, 282
NLRB 609 (1987), acknowledge the first point: that a un-
ion’s acquiescence in one prior benefit change, standing
alone, does not operate as a waiver of the union’s right to
bargain over such changes for all time. But they attempt
to evade the second point: that there must be a “thread of
similarity” linking past changes for there to be a cogniza-
ble past practice justifying the present change. 22 For ex-
ample, they rely on California Pacific Medical Center,
337 NLRB 910 (2002), in which the Board held that the
employer did not violate the Act by unilaterally laying off
employees following a reorganization of its operations.
But there the judge had made a specific finding that the

21 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.
22 The majority attempts to distinguish Caterpillar, Inc., 355 NLRB
521 (2010) on the ground that it was not decided on a waiver theory. This
is a distinction without a difference–whether a past practice provides cor-
roborative 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.,
Caterpillar, 355 NLRB at 523 & fn. 14 (citing Owens-Corning Fiber-
glas, supra); Provena St. Joseph Medical Center, 350 NLRB 808, 815 &
fn. 35 (2007); Lincoln Child Center, 307 NLRB 288, 317 (1992) (finding
employer had a long-running practice of laying off em-
ployees without prior bargaining with the union. Id. at
914. Thus, the layoffs at issue were of a piece with the
employer’s past actions. And, unlike here, the employer’s
practice of unilaterally laying off employees was also
grounded in a then-applicable contractual management-
rights clause.
My colleagues’ reliance on Omaha World-Herald is
similarly misplaced. As described above, there the Board
found that the union had waived its right to bargain over
certain pension plan changes based, in part, on the fact
during the term of the agreement “the union did not object
to a similar prior unilateral change.” 357 NLRB 1870,
1872 (2011) (emphasis added). And, as in California Pa-
cific Medical Center, there were additional factors—all
grounded in the applicable collective-bargaining agree-
ment—that supported a waiver finding.
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 ma-
jority. 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.23 This is such
a case.
III.
Although the Omaha World Herald Board endorsed the
notion that an “amalgam” of factors may establish waiver
in a particular case, the Board 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
today in holding that the Union waived its statutory right
to bargain over the Respondent’s unprecedented elimina-
tion of longstanding retiree dental and healthcare benefits
for incoming bargaining-unit employees. My colleagues
cobble together 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
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 No. 585 (2015) (Board reaf-
firming judge’s ruling and incorporating prior Board decision un-
der NLRB v. Noel Canning, 573 U.S. 513 (2014)).
23 See Tesoro Refining & Marketing Co., 360 NLRB 293, 294 fn. 9
(2014).
E. I. DUPONT DE NEMOURS CO. 17
traditionally understood it. Today’s decision, then,
amounts to lowering 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 collective
bargaining. Accordingly, I dissent.
Dated, Washington, D.C. June 21, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
Gregory M. Beatty, Esq., for the General Counsel.
Kris D. Meade, Glenn D. Grant and Jane Foster, Esqs.
(Crowell & Moring LLP), of Washington, D.C., for
the Respondent.
Kenneth Henley, Esq., of Bala Cynwyd, Pennsylvania,
for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was
tried in Richmond, Virginia, on May 23–24, 2011. The charge
was filed February 15, 2007, and the complaint issued December
28, 2010. The Ampthill Rayon Workers, Inc., International
Brotherhood of DuPont Workers (the Union) alleges that E. I.
DuPont de Nemours and Company (the Company) violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act (the Act)
by unilaterally eliminating retirement benefits for new employ-
ees without bargaining with the Union. The Company does not
deny that it refused to bargain with the Union before it eliminated
retirement healthcare and dental benefits for new employees at
its Spruance facility in Richmond, Virginia. It does, however,
assert that the Union waived its right to bargain over the elimi-
nation of such benefits for new employees.
On the entire record,1 including my observation of the de-
meanor 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 corporation, has been engaged in the

1 There is very little dispute as the relevant facts. The parties stipu-
lated to 24 sets of facts spanning the last three decades of their collective-
bargaining relationship. (Jt. Exh. 1.) In addition, the parties have long
followed a custom and practice of relying on the Company’s notes of
their collective-bargaining meetings. While the General Counsel chal-
lenged the admissibility of the notes at trial, there was no subsequent
evidence to refute their accuracy. Accordingly, I credit the Company’s
notes relating to 73 bargaining meetings as fairly and accurately docu-
menting the facts and circumstances that transpired during the relevant
time periods. (R. Exh. 3; Tr. 45–47, 104–132.)
2 The Company conducts business in the United States and abroad. In
this decision, however, all references to “corporate-wide” are to the
Company’s operations in the United States. (Jt. Exh. 1 at 1.)
manufacture of synthetic fibers and related products at its
Ampthill, Virginia facility, where it annually sells and ships
products, goods, and materials valued in excess of $50,000 di-
rectly to points outside the State of Virginia. The Company ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties
The Company is a Delaware corporation with its principal
place of business in Wilmington, Delaware. As of 2006, it em-
ployed more than 30,000 employees nationwide, of which more
than 4,500 were unionized. This dispute involves the Company’s
Spruance Fibers Plant (Spruance facility) in Virginia, where it
employed more than 1000 hourly workers represented by the Un-
ion.2
On August 28, 2006, James Borel held the position of Senior
Vice President—Human Resources, C.A. Campbell held the po-
sition of Human Resources Manager, Anthony Ray held the po-
sition of Plant Manager, Rodney Rhodes held the position of La-
bor Relations Manager for the Spruance Fibers plant, and Dianne
Vespucci held the position of Labor Relations Manager at the
Niagara facility. All of the aforementioned individuals were su-
pervisors within the meaning of Section 2(11) of the Act and
Company agents within the meaning of Section 2(13) of the Act
for the duration of time they held the positions described in this
paragraph.3
The Union represents employees in the Production and
Maintenance (P&M) and Clerical, Technical, and Office (CTO)
units. It operates through an Executive Committee and two Con-
tract Committees, one for each unit. The Executive Committee
meets with Spruance facility management on a regular basis,
while the Contract Committees are specifically designated to
bargain over changes to the contract. Both entities, however,
have been involved in bargaining.4
B. The Collective-Bargaining Agreement
The Company and the Union have had a bargaining relation-
ship at the Spruance facility for over 60 years.5 The P&M con-
tract became effective on September 1, 1999; the CTO contract
became effective October 1, 2000.6 Each contract contains a pro-
vision recognizing the Union as the exclusive bargaining agent
of covered employees and renews each year unless either party
gives notice of intent to terminate it. Both remained in effect as
3 Jt. Exh. 1 at 22.
4 The Union’s Executive and Contract Committees were each in-
volved in the pertinent events and there is no contention that the state-
ments or actions of one were more significant than the other. Accord-
ingly, in most instances, I simply refer to the actions of either committee
as the “Union.” (Tr. 33–34, 73, 101–102.)
5 Bruce Harris, a Company employee for over 39 years, provided
credible testimony regarding the custom and practice of the Company
and Union over the past four decades. During that time, he served the
Union as a Recording Secretary and Contract Committee Chairman be-
fore transitioning to Company management and serving as a labor rela-
tions manager and site bargainer. (Tr. 99–107.)
6 Jt. Exhs. 1A and 1B.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of August 2006. Although the contracts differ in several ways,
the pertinent provisions are identical.7
C. The Company’s Benefit Plans
The Company offers its Spruance facility employees the op-
portunity to participate in either corporate-wide benefit plans or
local benefit plans. The plans at issue are the Company’s Medi-
cal Care Assistance Program (MEDCAP) and the Dental Assis-
tance Plan (DAP).8
1. MEDCAP
Originally adopted on January 1, 1983, MEDCAP is a corpo-
rate-wide healthcare benefits plan governed by ERISA.9
MEDCAP applies to all of the Company’s United States employ-
ees and former employees, and their eligible dependants who
meet the eligibility requirements of MEDCAP, including certain
former employees represented by the Union who otherwise meet
the MEDCAP eligibility requirements.10 Those employees cov-
ered by the contract comprise just a small fraction of the total
number of individuals who receive benefits from the Company’s
benefit plans.11
Article XIX of the MEDCAP Plan Document describes the
Company’s rights and authority as Plan Administrator.12 Article
XX of the Plan Document addresses the Company’s rights to
amend or terminate MEDCAP. The MEDCAP Summary Plan
Document (SPD) also addresses the Company’s right to suspend,
modify, or terminate the plan.13
Neither MEDCAP nor DAP, its dental counterpart, are re-
ferred to in the contract and are not arbitrable under the con-
tract.14 The benefits received by retirees are virtually identical to
benefits received by active employees, except that active em-
ployees receive dental and medical benefits under BeneFlex,
while retirees receive them under MEDCAP and the DAP.15
2. DAP
DAP is a company-wide benefit plan, maintained by the Com-
pany and governed by ERISA, under which dental benefits are
provided to all of the Company’s United States employees, re-
tired employees, eligible survivors and dependents, and certain

7 The parties referred collectively to the two collective-bargaining
agreements, attached as Exhibits A and B to the stipulation, as the
“ARWI CBA.” (Jt. Exh. 1 at 2; R. Exh. 5(a)–(b), 6(a)–(b), 7(a)–(b)). I
refer to them collectively as “the contract.”
8 The Union did not dispute the testimony of Mary Jo Anderson, a
company senior counsel at the relevant times, that the Company’s
longstanding practice of maintaining a single set of benefit plans cover-
ing all of its employees and retirees was beneficial to the Company and
its employees for economic, administrative, and other reasons. (Tr. 142–
145.)
9 Copies of the MEDCAP Plan Document, dated April 21, 2005, and
the MEDCAP Summary Plan Document), effective January 2005, are
attached to the Stipulations as Exhs. C and D, respectively. (Jt. Exh. 1 at
6.)
10 Jt. Exh. 1 at 7.
11 Jt. Exh. 1 at 3.
12 Jt. Exh. 1 at 8.
13 Jt. Exh. 1 at 9.
14 As in this case, the parties stipulated during an earlier arbitration
that neither MEDCAP nor DAP were arbitrable. (Jt. Exh. 1 at 21.) Nev-
ertheless, the Company introduced evidence of an arbitrator’s February
former employees represented by the Union who otherwise meet
the eligibility requirements.16
Article XIII of the DAP Plan Document authorizes the Com-
pany to serve as DAP’s administrator or to designate one or more
persons to serve as the DAP’s administrator and describes the
rights and authority of the administrator.17 Article XIV of the
DAP Plan Document addresses the Company’s right to amend or
discontinue DAP. The DAP Summary Plan Document (SPD) ad-
dresses the Company’s right to suspend, modify, or terminate the
plan.18
Prior to implementing DAP on September 1, 1976, the parties
bargained over member participation in DAP. On May 13, 1976,
the parties agreed to include DAP as an additional item under
Article VII, the contract’s Industrial Relations Plans and Prac-
tices (IRP&P) provision.19 Employee participation in DAP, how-
ever, was subject to the Company’s reservation of rights:
RIGHT TO MODIFY PLAN AND BENEFIT SCHEDULES
A. The Company reserves the sole right to amend or discon-
tinue this Plan at its discretion by action of the Executive Com-
mittee. Any change which has the effect of reducing or termi-
nating benefits hereunder will not be effective until one year
following announcement of such change by the Company.
B. The Company also reserves the sole right at any time and
without notice to make general and specific revisions in the
benefit schedules in effect at any or all employment locations
and any such revision of schedules shall not be construed as a
reduction, termination or withdrawal of benefits. The desig-
nated benefit schedule at any one employment location shall in
no way be dependent on or subject to changes because of the
designated benefit schedule, or changes in the designated ben-
efit schedule, at any other employment location.20
That reservation of rights provision has remained unchanged
since 1976, with the exception of its reference to action by Ex-
ecutive Committee, which was eventually removed.21 The July
2003 DAP SPD contains a similar provision recognizing the
Company’s right to suspend, modify, or terminate DAP at any
time:
15, 2010 ruling that reservation of rights language contained in five other
benefit plans—all mentioned in the contract—constituted a clear and un-
mistakable waiver of the Union’s right to bargain over the 2006 changes
to those plans. As a result, he found that the Company was entitled under
the contract to unilaterally modify those plans. (R. Exh. 12 at 65.) As
neither MEDCAP nor DAP were mentioned in the contract, I have not
given any weight to the arbitrator’s decision regarding those provisions.
15 Anderson testified that, with the exception of the eligibility criteria,
there is virtually no distinction between the benefits structures of Bene-
Flex, MEDCAP, and DAP. (Tr. 147–149.) As further discussion of the
record demonstrates, however, there were numerous changes to retiree
health and dental plan benefits, including caps, premiums and coverages.
16 Copies of the DAP Plan Document, dated April 21, 2005, and its
SPD, effective July 2003, are annexed to the Stipulations as Exhs. E and
F, respectively. (Jt. Exh. 1 at 10–11.)
17 Jt. Exh. 1 at 12.
18 Jt. Exh. 1 at 13.
19 R. Exh. 3 at 8309, 8311.
20 R. Exh. 8 at 8.
21 Jt. Exh. 1E at 16.
E. I. DUPONT DE NEMOURS CO. 19
Future of the Plan
While the Company intends to continue the benefits and poli-
cies described in this booklet, the Company reserves the right
to suspend, modify, or terminate this Plan at its discretion at
any time.22
D. The 1986 Agreement
On September 3 and 4, 1985, the parties started a series of
discussions relating to the increasing costs of healthcare cover-
age.23 At the time, the contract contained a Hospital, Medical,
and Surgical (HMS) coverage provision at Article VIII providing
employees with basic hospital and medical-surgical coverage
through Blue Cross/Blue Shield of Virginia (BCBS). A separate
provision, Article VII, listed the other benefit plans and noted
that those benefits were subject to the various plan documents.24
On October 10, 1985, the Company rolled-out examples of alter-
native coverages, noting that it “does visualize a health care plan
with the same provisions as MEDCAP.”25 Discussions continued
on October 18, 1985, with the Company noting that MEDCAP
was not being proposed at that meeting.26
On November 26, 1985, the Company proposed 30 days writ-
ten notice of any changes to HMS coverage, subject to bargain-
ing prior to implementation. The Union disagreed with the Com-
pany’s proposed Article XIV for the P&M contract concerning
HMS coverage. While discussing the CT&O contract, the Com-
pany Union rejected any MEDCAP proposal, while the Com-
pany reiterated that there was no MEDCAP proposal on the ta-
ble, but that one would be forthcoming.27
By February 26, 1986, the Company began unveiling pro-
posals for the Union’s members to participate in MEDCAP. In-
cluded in the proposal was a reservation rights clause:28
Accordingly, the Company reserves the right to amend any
provision of the Aetna Plan (for example, co-pay, “stop-loss”,
and deductible features) or terminate the Program in its entirety
should either course of action be deemed necessary by the Com-
pany.29
The Union, however, repeatedly expressed concern about the
Company’s desire to include a reservation of rights provision in
the MEDCAP SPD. In objecting to inclusion of a reservation of
rights clause in the MEDCAP SPD, the Union stressed that the
BCBS plan did not contain a similar provision. The Company
explained that BCBS was a local plan controlled by Spruance
facility management, while MEDCAP was a corporate-wide
plan. Accordingly, the Union rejected any proposal revising the
HMS provision during the term of the contract and asked for an-
other proposal.30 The Company responded with a proposal to

22 Jt. Exh. 1F at 23.
23 R. Exh. 3 at 8363-8365, 8367–8368.
24 R. Exh. 5.
25 R. Exh. 3 at 8370–8380.
26 R. Exh. 3 at 8382–8384.
27 R. Exh. 3 at 8387, 8389, 8391.
28 Reservation of rights clauses are also commonly referred to in la-
bor-management relations as management rights clauses. (R. Exh. 3 at
8393–8399, 8405–8434.)
29 Id. at 8434.
30 R. Exh. 3 at 8436–8437, 8451–8452, 8477, 8481.
31 R. Exh. 3 at 8393–8394, 8398–8399.
include an alternative Aetna plan within the HMS provision.
Once again, the Company’s proposal included a reservation of
rights provision allowing it to amend or terminate the plan.31
On March 4, 1986, the Union rejected the proposed HMS pro-
posal because of its inclusion of the reservation of rights provi-
sion.32 The parties discussed the issue again on March 12, 1986,
but the reservation of rights provision remained the stumbling
block to an agreement.33 The parties discussed the HMS proposal
again on March 21, 1986. At this meeting, the Company made
another proposal, but the Union rejected the proposal as well be-
cause of the Company’s insistence on including a reservation of
rights provision in exchange for the rights to participate in
MEDCAP.34 On May 14, 1986, the Union once again rejected
the Company’s proposal for the same reason.35
On September 5, 1986, the Union objected to references to the
new Aetna plan in the contract. The Company responded that “it
would draft two proposals–one with a general reference, the
other with a specific reference” to the new Aetna plan. The Un-
ion’s preference was to omit it entirely, but its second choice was
a “general reference” in the IRPP provision at article VII, with a
footnote similar to the one in DAP containing the reservation of
rights clause.36
After further discussions on September 15 and 26, 1986, the
Union agreed to participation in the new Aetna plan (MEDCAP),
including the reservation of rights clause contained in the Plan
Document:37
The Company reserves the right to amend any provision of the
Program or terminate the Program in its entirety should either
course of action be deemed necessary by the Company.38
On September 15, 1986, the Company suggested removing
the HMS provision from the contract. The Union responded that
“HMS should be mentioned where everything else is that is in-
volved in Management’s Rights (IRP&Ps).” The Company re-
jected that request and the Union responded that “there is a need
for [HMS] to be placed in the Labor Agreement where people
recognize Management has a right to change without Union
agreement.” The Company rejected that proposal on the ground
that it did not want the new Aetna Plan (i.e., MEDCAP) listed
under Article VII, as that provision’s 1-year notice restrictions
“would present a bar” to the Company’s ability to make neces-
sary changes to medical coverage.39
On September 26, 1986, the Union agreed to include new,
general language in the HMS articles, rather than the IRPP pro-
visions that referenced an alternative to BCBS coverage. It did
not, however, explicitly mention either MEDCAP or the Aetna
Plan:40
32 R. Exh. 3 at 8437.
33 R. Exh. 3 at 8450–8452.
34 R. Exh. 3 at 8476.
35 There are no notes of the May 14 meeting, but the discussions dur-
ing that meeting are recounted in the notes for the May 28, 1986 meeting.
(R. Exh. 3 at 8480–8482.)
36 R. Exh. 3 at 8492.
37 It is undisputed that the reservation of rights clause has not changed
since the plan document was adopted. (R. Exh. 3 at 8499–8504.)
38 Jt. Exh. 1C, p. 23.
39 R. Exh. 3 at 8499–8503.
40 R. Exh. 3 at 8504.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Company may make available to employees alternate hos-
pital medical-surgical coverage plans, and any employee may
elect such alternate coverage in lieu of the coverage described
in the above sections of this Article VIII [or XIV].41
E. Benefit Plan Changes Since 1986
1. Union requests for information
In virtually every instance, the Company has provided the Un-
ion with prior notice of benefits changes since the latter agreed
to participate in MEDCAP in 1986. The Company communi-
cated the information to the Union at Executive or Contract
Committee meetings before disseminating it to Spruance facility
employees through assorted Company publications and other
communications.42
In many of those instances, the Union requested information
and/or requested bargaining over the changes. The Company re-
sponded on numerous occasions by providing the information
and agreeing to bargain. The Union frequently requested infor-
mation when premium increases were announced.43 In 1988,
1996, 1999, 2000, and 2003, the Union requested and the Com-
pany agreed to provide, information relating to announced pre-
mium increases in order to research alternative insurers.44 In
2001 and 2002, the Union requested similar premium rate in-
crease information and the Company did not deny the requests.45
There were also periodic requests for information relating to
coverage issues. In 1995, the Company agreed to follow up on
the Union’s concerns regarding a limitation on certain types of
coverage at a local hospital.46 In 1996, the Company responded
to a union inquiry relating to outpatient surgery by an in-network
gynecologist.47 In 1998, the Union questioned why the Company
switched coverage to Cigna and the Company responded.48 In
2000, the Union asked the Company if its announced changes to
BeneFlex were bargaining or simply the dissemination of infor-
mation. The Company responded that “it is here to review the
2001 BeneFlex plan changes.”49
In some instances, the Company refused to provide employee
benefit information and/or bargain on the ground that it would
not negotiate over specific changes to its corporate-wide IRP&P
plans, including MEDCAP and DAP.
On June 11, 1987, there was a notable exchange on the issue
of retiree benefits. At this meeting, the Union asked whether re-
tirees are guaranteed a medical plan when they retire. The Com-
pany responded that pensioners are covered and told what insur-
ance they have when retiring. The Company added that it “has

41 R. Exhs. 6(a), p. 15, and 6(b), p. 36.
42 The General Counsel did not dispute the effectiveness of the various
company communications in informing employees of the changes. (Tr.
74, 134, 169–184.)
43 Irvin credibly testified as to the Union’s practice of requesting in-
formation, verifying the information the Company provided, and acqui-
escing to favorable changes. (Tr. 38.)
44 GC Exh. 47 at 8584; R. Exh. 3 at 8719–8720, 8822–8824, 8840-
8841, 8931–8933.
45 There is no indication that the Company denied these information
requests. (R. Exh. 11 at 8847; GC Exh. 14 at 17850–17851; GC Exh. 15
at 15556–15557.)
46 GC Exh. 4 at 15378.
47 GC Exh. 5 at 15413.
48 R. Exh. 3 at 8795.
reserved the right to change and modify or discontinue the plan
if needed.” It further proclaimed that “there has been no plan to
discontinue medical coverage for pensioners and does not visu-
alize that ever happening . . . The plan may be changed or, or the
pensioner may be covered by a different plan.” (Emphasis
added.)50
2. Union requests to bargain
In some instances since 1986, the Company acknowledged an
obligation to bargain or agreed to the Union’s request to bargain
over changes. In an interoffice memorandum, dated September
1, 1987, the Company recognized that proposed changes to def-
initions of dependent coverage in DAP, among several items,
“must be bargained with Union(s) before implementation; there-
fore, discussion must be limited to exempt employees until bar-
gaining is initiated.”51 On September 9, 1987, the Company pre-
sented to the Union a “proposal” to change the DAP, which it
characterized as “clearing up of the Plan language.”52
On September 22, 1987, the Company agreed to bargain over
proposed BCBS premium increases.53 In 1992 and 1993, it an-
nounced that bargaining over increases to healthcare premiums
already occurred or would be taking place.54 On July 21, 1993,
the Union asked “if healthcare premiums would remain the same
over the life of the contract. The Company said it reserves the
right to modify the plan, and premiums would be changed as
necessary yearly.”55
In 1993, the Union accepted the Company’s offer to have its
active union members participate in medical and dental plans
covered under BeneFlex. All retirees and their survivors re-
mained eligible to participate in, and continued receiving bene-
fits under, MEDCAP and DAP.56 Medical and dental benefits
offered under BeneFlex were virtually identical to those availa-
ble to union members under MEDCAP and DAP, with the ex-
ception that MEDCAP and DAP would continue to cover pen-
sioners and laid-off employees covered by the Company’s tran-
sition program. Moreover, the reservation of rights language
contained in MEDCAP and DAP remained unchanged.57
Notwithstanding the changeover to BeneFlex, the course of
dealing between the parties, however, remained the same. On
October 2, 1997, the Union complained that the merger between
Aetna and US Healthcare was causing a major health provider to
leave the network. The Company explained that the insurers
were still negotiating with the provider. The Union responded
that the effects of the merger impacted its members and should
49 R. Exh. 3 at 8840.
50 R. Exh. 3 at 8511.
51 GC Exh. 3 at 15270.
52 GC Exh. 3 at 15265.
53 Linda Derr, a former labor relations representative for the Com-
pany, conceded that the Company agreed to meet and discuss this issue.
(Tr. 249–250; GC Exh. 2 at 15277–15278.)
54 R. Exh. 4 at 9072–9074.
55 R. Exh. 3 at 8691.
56 The testimony of Anderson and Irvin was fairly consistent regard-
ing the events leading to bargaining unit members enrolling in BeneFlex.
(Tr. 65–68, 147–149.)
57 There is no dispute as to the similarity between the provisions in the
MEDCAP and BeneFlex plans. (R. Exh. 3 at 8695, 8697–8698; Tr. 69–
79.)
E. I. DUPONT DE NEMOURS CO. 21
have been bargained. The Company agreed to investigate the
matter.58 Similarly, on December 18, 1997, while the contract
was open, the Company notified the Union of changes of the
health and welfare plans. The Union insisted on bargaining over
these changes and the Company agreed.59 On October 13, 1999,
the Union suggested consideration of a local health plan for the
Spruance facility. The Company agreed to consider any such
proposal, but reminded the Union of the advantages of partici-
pating in a corporate-wide plan with its larger enrollment.60
3. The Company’s unilateral changes
Notwithstanding the parties’ history of bargaining over the
Company’s numerous changes to its benefit plans, the Company
has implemented MEDCAP and DAP changes every year since
1987. On more than 50 occasions, the Company has announced
changes to health care premiums, deductibles, co-pays and an-
nual plan limits, benefit options, terms of coverage, and partici-
pant eligibility relating to working spouses and dependents
through age 24.61
Dealings between the parties were not affected in any notice-
able manner by the changeover of actively employed union
members to BeneFlex in 1993. As it had ever since the Union
agreed to participate in MEDCAP in 1986, the Company contin-
ued making unilateral changes to MEDCAP and DAP. Theses
included changes to premiums, co-pays and deductibles for re-
tirees, and eligibility criteria under MEDCAP and DAP.62
Some of the unilateral changes increased coverage. In 2004,
for example, the Company added a network of 58,000 dentists.63
That same year, the Company announced coverage eligibility in
its corporate-wide benefit plans for an additional category of de-
pendents—the same-sex domestic partners of employees.64
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. On that date, the
Union requested the Company bargain over schedule changes to
DAP. The Company refused, explained that the plant manager
could replace a corporatewide plan with a local plan, and ex-
pressed a willingness to consider such a proposal.65 The Com-
pany reiterated the distinction between local and corporate-wide
health plans and, when the Union expressed an interest in pro-
posing health plan changes, the Company responded that “it has
said in the past that it would not bargain these changes locally.”66
On October 15, 2002, the Company announced, for the first

58 R. Exh. 3 at 8737.
59 GC Exh. 8 at 15456–15457.
60 R. Exh. 3 at 8822.
61 The Company introduced a summary chart of records documenting
the changes as R. Exh. 11. There is no dispute, however, that the Com-
pany made numerous and regular unilateral changes aspects of the bene-
fit plans, including terms of coverage, dependent and spousal eligibility,
deductibles, co-pays, and annual caps, since the Union agreed to partici-
pate in MEDCAP and DAP in 1993. (Tr. 86–89.).
62 Irvin conceded this point. (Tr. 70–71, 88–89.)
63 R. Exh. 3 at 8932.
64 The Union voiced concern over the limitation of the new eligibility
of same-sex partners, while excluding opposite-sex domestic partners.
(R. Exh. 3 at 8955–8956.)
65 R. Exh. 3 at 8569–8570.
time, that it would impose an annual limitation, or cap, on its
contributions to retiree healthcare; once retirees reached the
newly-imposed caps, all additional costs of their medical cover-
age would be borne by retirees. The Company also announced a
change to the way in which it calculated costs for retiree medical
coverage. Pursuant to the change, retirees would pay 50 percent
of their healthcare costs.67 In addition, on October 28, the Com-
pany announced that retirees would, for the first time, pay a pre-
mium for certain types of dental work.68
Finally, some changes constituted amounted to a coordination
of benefits that neither enhanced nor reduced them. In 1993, the
Company expanded medical precertification to 14 medical and
surgical procedures in order to save employees “unnecessary
time and effort, and help eliminate doubt when you’re faced with
any one of 14 medical or surgical procedures.”69 That same year,
since active employees were to receive medical and dental cov-
erage through BeneFlex, the Company proposed, and the Union
agreed to delete the HMS provisions in the contract and replace
it with a BeneFlex plan provision.70 They were replaced by a
provision incorporating BeneFlex into the IRPP article, effective
July 1, 1993, as well as the successor contract, effective February
1, 1995:
Section 3. In addition to receiving benefits pursuant to the
Plans and Practices set forth in Section 1 above, employees
shall also receive benefits as provided by the Company’s Bene-
Flex Plan, subject to all terms and conditions of said Plan, pro-
vided, however, that as long as this Plan is in effect at any other
Plant within the Company, it shall not be withdrawn from the
employees covered by this Agreement.71
F. The 2006 Unilateral Changes to MEDCAP and DAP
At no time prior to 2006 did the Union file a grievance or un-
fair labor practice regarding any of the MEDCAP or DAP
changes. In 2006, without consulting the Union, the Company
decided to eliminate participation by new employees in its retiree
benefit plans.72 On August 28, 2006, Rhodes informed the Union
of the Company’s intention to modify seven benefit plans. The
most significant changes were the elimination of MEDCAP and
the DAP for new employees hired after January 1, 2007.73 Irvin
requested the plan documents, asserted that the legibility changes
to MEDCAP and the DAP were bargainable, and demanded a
meeting to bargain over the change. Rhodes agreed to provide
the plan documents and responded to several other questions
66 GC Exh. 6 at 18155.
67 R. Exh. 11, Tab 37 at 2443.
68 Irvin conceded Anderson’s point that the premium cost increases
were significant. (R. Exh. 3 at 8859; Tr. 75–83, 187–188.)
69 Anderson reluctantly testified that this change was both positive and
insignificant. (R. Exh. 11, Tab 7 at 676; Tr. 211).
70 R. Exh. 3 at 8693.
71 R. Exhs. 7(a) at 17129, and 7(b) at 16419.
72 Anderson credibly explained that the Company made these changes
after reviewing the health benefits being offered by competitors. (Tr.
158.)
73 Irvin and Rhodes provided fairly consistent testimony regarding
discussions between the parties on this date. (Tr. 34–36, 158, 270; Jt.
Exh. 1 at 5, 17–18; GC Exh. 50.)
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posed by the Union. Notwithstanding Irvin’s demands that the
Company bargain over the changes, the Company’s President
announced them to all employees later that day.74
When the August 2006 changes were announced, the Com-
pany acknowledged its obligation to furnish information relevant
to bargaining. The confidential “Union Notification Guidelines”
memorandum that was circulated contained the following in-
struction:
Union Information Requests
Unions may be entitled to requested information in order to
bargain. Management negotiators are cautioned to avoid flat
refusals to information requests. If the union makes a request
for information beyond what has been forwarded to the site,
Management negotiators should develop a clear understanding
of the request and consult with their assigned PRS consultant.75
On November 7, 2006, the Union grieved the Company’s uni-
lateral changes to seven benefit plans, including MEDCAP and
DAP.76 The Company denied that grievance on November 30,
2006.77
The Company implemented the MEDCAP and DAP eligibil-
ity changes on December 20, 2006. These amendments applied
corporate-wide to all employees, former employees, and their el-
igible dependents, including bargaining unit members. The prac-
tical effect of this change was to eliminate any retirement health
and dental coverage for employees hired after January 1, 2007.78
Legal Analysis
The General Counsel contends that the Company violated
Sections 8(a)(5) and (1) of the Act when it unilaterally elimi-
nated future retirement healthcare benefits for new employees
without bargaining with the Union on the grounds that: (1) the
management-rights provision specifically reserving the right to
terminate MEDCAP and/or DAP was not included in the collec-
tive-bargaining agreement; (2) the Company had a scattered his-
tory of imposing unilateral changes and bargaining with the Un-
ion following the ratification of the contract; and (3) even if the
Company established a history of making unilateral changes to
the MEDCAP/DAP programs, the elimination of these programs
without providing some form of alternate coverages constituted
a material departure from past practice that violated the Act. The
Company denies the allegations and asserts that the bargaining
history, as well as the history of imposing unilateral changes to
the programs, amount to a clear and unmistakable waiver of the
Union’s right to bargain over these changes.
The parties focused on the issue of whether the Company was
entitled to eliminate MEDCAP and DAP for new employees
without bargaining with the Union. The issue, however, is actu-
ally much broader—whether the Company is entitled to unilat-
erally eliminate all retiree health care.
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 without bargaining. NLRB v. Katz, 369 U.S.
736 (1962). An employer has a statutory duty to bargain over

74 Jt. Exh. 1 at 23–24 and Exh. 1J.
75 GC Exh. 36 at 5274.
76 Jt. Exh. 1 at 14, Exh. G.
77 Jt. Exh. 1 at 15, Exh. H.
changes to retiree health care coverage where bargaining unit
employees may be entitled to receive future retirement benefits
as a term and condition 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); Califor-
nia Pacific Medical Center, 337 NLRB 910 (2002).
I. EXPRESS WAIVER
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 bur-
den of establishing the existence of the waiver. Pertec Computer,
284 NLRB 810 fn. 2 (1984).
Pursuant to the contract, the Union has a right to bargain
on behalf of retirees, as well as active employees. It is undis-
puted that MEDCAP and DAP Plan Documents contained man-
agement-rights clauses that made them terminable by the Com-
pany. The contract does not, however, mention either plan. Not-
withstanding the absence of an express waiver in the contract,
the Company contends that the Union waived its right to bargain
over these changes in clear and unmistakable terms as evidenced
by the bargaining history surrounding the contract and the Com-
pany’s well-established past practice of unilaterally changing the
plan terms.
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 Company’s contention that the
unions incorporated the benefit plans’ reservation of rights
clauses into the contract based upon their “course of conduct”:
For instance, the Companies suggest that because the unions
have copies of the benefit plans and have relied on the benefits
provided by those plans, the unions have also incorporated the
reservation-of-rights clauses in those plans into the collective-
78 Irvin also noted that a potential coverage gap would arise by elimi-
nating MEDCAP and DAP for employees retiring at the age of 58, the
earliest potential age for full retirement, until they qualify for Medicare
at the age of 65. (Jt. Exh. 1 at 16, 19–20; Tr. 40–41.)
E. I. DUPONT DE NEMOURS CO. 23
bargaining agreements. Our cases, however, imply that it is
only express language in the collective-bargaining agreement
that incorporates a reservation-of-rights clause. 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). In that
case, a management-rights provision was contained in the em-
ployee benefits plan, but not in the collective-bargaining agree-
ment. The Court refused to find a waiver of the union’s bargain-
ing rights because the management-rights clause was only in an
employer-created document that contained no explicit reference
to the union.
The Company contends in its reply brief that Southern Nu-
clear and Mississippi Power are inapposite since no evidence
was presented in either case that the parties specifically dis-
cussed during bargaining the reservation of rights language con-
tained in the benefit plans at issue. Waiver of a statutory right
may be evidenced by bargaining history, but the Board requires
the matter at issue to have been “fully discussed” and “con-
sciously explored” during negotiations. Davies Medical Center,
303 NLRB 195, 204 (1991). Furthermore, The Company must
demonstrate that the Union consciously yielded or clearly and
unmistakably waived its interest in the matter. Rockwell Interna-
tional 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 conscious
relinquishment by the union, clearly intended and expressed.”
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 and, there-
fore, waived its statutory right to the production of relevant in-
formation.
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
bargaining notes or its subsequent bargaining history suggested
that the Union made a conscious relinquishment that clearly in-
tended and expressly bargained away its statutory right).
The Company proffered extensive bargaining notes at trial de-
tailing the 1985 and 1986 contract negotiations. While the Com-
pany correctly notes that the incorporation of a management-
rights provision in the contract was discussed at length, the notes
did not evidence a conscious relinquishment by the Union that
was clearly intended and expressed during negotiations. If any-
thing, the bargaining history documents the Union’s continued
aversion to incorporating a management-rights provision within
the contract. Furthermore, it is far from clear that there was a
meeting of the minds as to what the removal of the management-
rights clause from the pertinent part of the contract meant. While
the Company contends that the provision was excluded from the
contract because it did not want to be bound by the 1-year
layover provision in article VII, the bargaining notes do not re-
veal the Union to have been operating under the same pretenses.
Based on the foregoing, the express language of the contract,
as well as the parties’ past dealings and bargaining history with
respects to the terms and conditions contained therein, fail to re-
veal the existence of an express waiver by the Union permitting
the Company to unilaterally eliminate retiree health coverage.
II. IMPLIED WAIVER
Notwithstanding the absence of an express waiver, the Com-
pany advances several additional theories demonstrating that the
Union waived its objection to the elimination of retiree
healthcare—a general waiver based on past practice, the exist-
ence of a longstanding practice as the continuation of the status
quo, and estoppel. The General Counsel denies the applicability
of these theories and relies on the argument that the changes were
material and more substantial than any unilateral changes imple-
mented over the past 20 years.
A. Waiver Based on Past Practice
The Company’s alternative theory is premised on the concept
that its 20-year period of imposing unilateral changes to
MEDCAP and DAP terms of coverage constitutes a waiver.
There is precedent for the notion that a waiver may be inferred
from extrinsic evidence of contract negotiations and/or past prac-
tice. Mt. Clemons General Hospital, 344 NLRB 450, 460 (2005).
In Litton Microwave Cooking Products v. NLRB, 868 F.2d 854
(6th Cir. 1989), the Sixth Circuit reversed the Board’s decision
that an employer violated Section 8(a)(5) “given the explicit ref-
erence to layoffs and production methods in the management-
rights clause, the history of uncontested work relocation and
layoffs, and the unfavorable assessment by the administrative
law judge of the credibility of a witness relied upon by the
Board.” Id. at 858; See also Kiro, Inc., 317 NLRB 1325, 1328
(1995).
Litton is distinguishable, however, because there the em-
ployer’s past practices of unilateral changes were bolstered by a
management-rights clause in the contract that the union official
himself admitted had afforded the company the right to do what-
ever it wanted. Litton, 868 F.2d at 858. Furthermore, the Union
never challenged the loss of bargaining unit jobs that resulted
from the employer’s unilateral actions, nor did it request bargain-
ing over the company’s relocation of work while the collective-
bargaining agreement was in effect. Id. Not only was the man-
agement-rights clause incorporated into the collective-bargain-
ing agreement in Litton, but the Union failed to proffer evidence
countering the Company’s history of imposing similar unilateral
changes without any requests for bargaining or information. The
employer, therefore, was able to establish a waiver through a
broadly phrased management-rights clause supplemented by a
history of uncontested unilateral changes.
Similarly, in California Pacific Medical Center, 337 NLRB
910, 914 (2002), the Board found lawful an employer’s unilateral
action in laying off employees based on an established history of
similar actions and an absence of union requests to bargain.
Moreover, the applicable collective bargaining agreement con-
tained a management-rights clause found to have provided man-
agement with the unfettered right to lay-off employees as
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
necessary.
More recently, in Mt. Clemons General Hospital, supra at 460,
an employer made unilateral changes to a tax shelter annuity pro-
gram that downsized the program from five providers to one. The
change was not explicitly authorized in the contract, but refer-
enced only in a general waiver clause. As such, the Board found
that clause insufficient to constitute an express waiver for spe-
cific terms not listed in the contract. Nevertheless, the Board rec-
ognized the existence 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 here that presents a mixed bag of transactions—
unilateral changes without requests to bargain, as well as
changes followed by requests for information and/or requests to
bargain. The instances in which the Company unilaterally
changed benefit terms without requests to bargain outnumber the
instances in which the Union requested information or sought to
bargain. Nevertheless, under the circumstances, the transactional
history makes it less than certain that the Union waived its right
to bargain over the elimination of retiree health benefits.
Moreover, neither Mt. Clemons, nor Litton nor California Pa-
cific addressed unilateral changes that substantially deviated
from past practices. Both Mt. Clemons and Litton involved dis-
putes that arose from unilateral changes such as layoffs that the
companies implemented 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 considerably from the companies’ similar past practices,
which they had implemented openly and with the acquiescence
of their respective unions.
B. Longstanding Practice as Continuation of the Status Quo
The Company also contends that the 2006 changes were
merely part of the status quo of a longstanding practice that
spanned a 20-year period of unilateral changes to MEDCAP and
DAP. The General Counsel contends, however, that these
changes were scattered among numerous information requests
over the years that constituted requests for bargaining and coun-
ter any semblance of a well-established past practice.
The Board has found that 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). The Courier-Journal,
342 NLRB 1093, 1095 (2004). In Courier-Journal, the employer
negotiated a provision in its contract that reserved to the em-
ployer “the right to modify or terminate” the health care plan.
Over a 10-year period, the employer made unilateral changes in
costs and benefits for both union and nonunion employees under
the plan. Some of these changes were made while the contract
was in effect and others were made during hiatus periods be-
tween contracts. After 10 years of such a practice, the employer
announced another increase in employee premiums during a hi-
atus period, to which the union objected. The Board dismissed
the union’s charge, finding that these changes were consistent
with the employer’s history of making these changes for the past
10 years without union objection, noting that this finding was

79 R. Br. at 41–42.
grounded not in waiver but “in past practice, and the continuation
thereof.”
The Board refused to extend the Courier-Journal holding to
unilateral changes made to benefit plans during hiatus periods
between collective-bargaining agreements in E.I. DuPont de
Nemours, 355 NLRB 1084 (2010). The employer in DuPont
failed to carry its burden because its asserted past practice was
limited to changes made while a contract which included a man-
agement-rights clause was in force. Unlike the employer in Cou-
rier-Journal, who had a history of making changes both while
the contract was in force and during hiatus, the employer in
DuPont could only point to past practice while the contract was
in force, and therefore, could not substantiate a claim that its past
practices also extended to hiatus periods.
The Company relies heavily on the Courier-Journal holding
in its post-hearing brief and argues that this case falls squarely
within its holding because its 2006 changes “represent nothing
more than [the Company’s] consistent, 30-year practice of mak-
ing unilateral changes to the [DAP] and MEDCAP.”79 The Com-
pany further contends that the only reason the Board rejected the
employer’s past practice argument in DuPont was because
“DuPont did not offer sufficient evidence to establish a past prac-
tice of unilateral changes during periods when a contract author-
izing the changes was not in force”80 In this case, however, the
Company engaged in a decades-long practice of corporate-wide
unilateral changes that are not contained in the collective-bar-
gaining agreement. Instead, they have been based upon the
plans’ reservation of rights language that has never expired/been
on hiatus and remains in full force. Nevertheless, the Company
believes that its actions here fall within the parameters of both
holdings.
While the Company asserts that Courier-Journal was distin-
guished in DuPont, the General Counsel contends that DuPont
restricted Courier Journal to unilateral changes made to benefit
plans during hiatus between collective-bargaining agreements.
The Board noted that it was “in tension with previously settled
principles concerning waiver.” E.I DuPont at fn. 5. The Board’s
language in DuPont suggests that it is distinguishable from Cou-
rier-Journal because the employer had not established a
longstanding practice of unilateral changes throughout all phases
of the life of the collective-bargaining agreement. The Company
correctly observes that the contract has been in effect through the
entire course of the Company’s unilateral changes to MEDCAP
and DAP. Nonetheless, the Company failed to meet its burden in
establishing that the Union expressed a clear and unmistakable
waiver of its right to bargain. Thus, Courier-Journal is ulti-
mately inapposite. The Company’s unclear history of imple-
menting unilateral changes to the health plans, interspersed with
the Union’s requests for information, fails to establish a status
quo that meets the requirements of Courier-Journal. Further-
more, the Company’s unilateral termination of future retirement
plans, without offering alternate coverage, cannot be sensibly
considered a continuation of the status quo. Although the Com-
pany established a history of unilateral changes to health bene-
fits, there is no evidence of the Company ever terminating health
coverage for retirees.
80 R. Br. at 43.
E. I. DUPONT DE NEMOURS CO. 25
C. 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. Brewers and Mal-
sters, enfd. D.C. Cir. at 45 (even if union waived its right to bar-
gain over prior changes, union has not waived its right to bargain
over future changes); Midwest Power Systems (not enough to
show at most a union’s silent acquiescence to certain prior
changes in retiree benefits). Unlike the union in Manitowoc,
which was equitably estopped from bargaining because there
was a history of unilateral changes without bargaining requests,
information requests, or other objections from the union, the Un-
ion here made numerous information requests throughout the
years, to which the Company acquiesced. Information requests
sent to employers constitute requests for bargaining. Eldorado,
335 NLRB 952, 954 (2001).
To the contrary, the Company’s assertions, past practices, and
manifestations to the Union estop it from unilaterally terminating
MEDCAP/DAP without providing an alternative coverage plan.
The Company’s bargaining notes, customarily shared with the
Union, indicate that the Company had no intention of terminat-
ing the retiree benefit plans, thus causing employees to rely on
the Company’s representations to their eventual detriment.
n June 11, 1987, the Union raised the subject of medical in-
surance for retirees, specifically, whether pensioners are guaran-
teed a medical plan when they retire. The Company responded
that pensioners are covered and told what insurance they have
when retiring. The Company added that it “has reserved the right
to change and modify or discontinue the plan if needed.” The
Company added that “there has been no plan to discontinue med-
ical coverage for pensioners and does not visualize that ever hap-
pening . . . The plan may be changed or, or the pensioner may be
covered by a different plan.” (Emphasis added.)81
The Company is, therefore, bound by its representations to the
Union. There is no mention at this bargaining session of
MEDCAP/DAP’s management-rights clauses that would allow
the program to be terminated. This establishes that the Company
itself considered unilateral changes to the status quo insofar as
they occurred within the framework of an existing future retire-
ment benefits plan. The bargaining history demonstrates that
even the Company was operating under the assumption that a
retirement healthcare and dental plan would always exist. The
Company’s history of imposing unilateral changes to the terms
of the coverage is understandable within this framework. How-
ever, terminating the entire retiree healthcare and dental program
far exceeds the expectations of the parties based on a 30-year
bargaining record.
D. Material Departure from Past Practice
The Company’s reliance on a 20-year period of unilateral

81 R. Exh. 3 at 8511.
changes to MEDCAP and DAP is also undermined by the mate-
riality of the 2006 changes. An employer violates Section 8(a)(5)
if the unilateral change at issue constitutes a material departure
from well-established past practice. Caterpillar, Inc., 355 NLRB
521 (2010). In Caterpillar, the Board found that an employer's
unilateral implementation of a generic-first prescription drugs
program violated Section 8(a)(5). The employer contended that
it had a longstanding practice of unilaterally implementing
changes to its health care plan and that implementation of the
generic first policy was a continuation of this practice. The Board
first found that the Company failed to show “that the practice
occurred ‘with such regularity and frequency that employees
could reasonably expect the ‘practice’ to continue or reoccur on
a regular and consistent basis.” The Board elaborated:
In addition, even assuming regularity and frequency, there was
no practice. Other than the fact that they each altered the Re-
spondent's prescription-drug plan, there is no thread of similar-
ity running through and linking the several types of change at
issue here. The three types of past change—preauthorization
requirements, drug quantity limits, step therapies—are each
dissimilar; and the Respondent does not contend that “generic
first” falls into any one of these categories of past practice. And
it does not: “generic first” is not a preauthorization require-
ment; it has nothing to do with drug-quantity limits; and Labor
Relations Consultant Stevens expressly acknowledged that it is
not a step therapy.
The Board then proceeded to explain that “even assuming that
the past changes were sufficiently similar among themselves to
constitute a “practice,” the implementation of “generic first” rep-
resented a material departure from that past practice. The past
changes were limited in scope, involving only certain drugs or
families of drugs. “Generic first,” by contrast, involved all
brand-name drugs that have generic equivalents. Moreover, and
significantly, unlike “generic first,” the past changes did not alter
express terms of the Group Insurance Plans.”
Finally, the Board concluded: “[m]aking a series of disparate
changes without bargaining does not establish a “past practice”
excusing bargaining over future changes. Rather, it shows
merely that, on several past occasions, the Union waived its right
to bargain. It is well settled, however, that a “union's acquies-
cence in previous unilateral changes does not operate as a waiver
of its right to bargain over such changes for all time.” Id. at 522–
523. (quoting Owens-Corning Fiberglas, 282 NLRB 609
(1987)).
The Company has failed to establish that the Union waived its
right to bargain based on its bargaining history and past practice.
Furthermore, based on the Caterpillar holding, the elimination
of MEDCAP/DAP constituted a material departure from any
past practices that DuPont may have established. Imposing uni-
lateral changes to premium rates and the scope of coverage is
substantially different from terminating a plan in its entirety, es-
pecially when the Union has operated under a reasonable as-
sumption for over 20 years that the plan would not be terminated.
DuPont’s actions are therefore distinguishable from the employ-
ers in Mt. Clemons General Hospital, Litton, and Courier-
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Journal because the unilateral changes at issue in those cases
were within the bounds of similar past practices and did not
amount to a material departure. In none of those cases was a
healthcare program terminated in its entirety without a back-up
proposal or replacement program for current employees. The
downsizing of a health benefits program differs substantially
from the complete elimination of healthcare program for future
retirees, especially when the union and employees have been
lead to believe that some form of health insurance would be
available to them in the future. The Company has failed to carry
its burden in establishing an implied waiver through its bargain-
ing history or past practice, and its elimination of MEDCAP and
DAP without providing any alternative healthcare and dental
plan coverages for future retirees constitutes a material departure
from past practice.
For the foregoing reasons, Respondent engaged in an unfair
labor practice in violation of Sections 8(a)(1) and (5) of the Na-
tional Labor Relations Act.
CONCLUSIONS OF LAW
1. E. I. DuPont de Nemours and Company (the Company) is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Charging Party, Ampthill Rayon Workers, Inc., Inter-
national Brotherhood of DuPont Workers (the Union) is a labor
organization within the meaning of Section 2(5) of the Act and
is the recognized collective-bargaining representative of a bar-
gaining unit composed of the production, maintenance, clerical,
technical, and office employees employed by the Company at its
Spruance facility in Ampthill, Virginia.
3. On or about December 20, 2006, the Company violated
Section 8(a)(5) and (1) by failing to bargain upon request by the
Union and unilaterally terminating retirement healthcare and
dental benefits for all unit employees hired after January 1, 2007.
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 the Union concerning the
termination of retirement healthcare and dental benefits for all
unit employees hired after January 1, 2007, we shall order the
Company to cease and desist therefrom and to take certain af-
firmative action necessary to effectuate the policies of the Act,
including the posting of an appropriate notice to employees. Spe-
cifically, we shall order the Company to rescind, for the bargain-
ing unit employees, the change in its retiree healthcare and dental
program, implemented December 20, 2006, terminating
MEDCAP and DAP for such employees. The Company shall,
upon demand by the Union, bargain in good faith regarding with
respect to any Company proposal to completely eliminate retire-
ment healthcare and dental benefits for bargaining unit employ-
ees hired after January 1, 2007.82

82 Given an extensive history that includes unilateral changes by the
Company to certain aspects of employees’ retirement healthcare and den-
tal coverage (premiums, deductibles, co-pays, annual caps, and depend-
ent and spousal eligibility), the remedy is limited solely to the material
In the event that this Remedy is not adhered to, bargaining unit
employees hired after January 1, 2007, over time, will be ad-
versely affected by the lack of retirement healthcare and dental
benefits. In that case, the Company shall make whole its bargain-
ing unit employees who have retired for any loss of healthcare or
dental benefits suffered as the result of the Company’s unlawful
termination of retiree health and dental benefits for employees
hired after January 1, 2007. Payments for lost benefits are to be
computed in the manner set forth set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons, 283 NLRB
1173 (1987), and compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).
ORDER
The Company, E. I. DuPont de Nemours and Company,
Ampthill, Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unilaterally announcing and terminating employees’ re-
tirement health and dental benefits.
(b) Making material, substantial, and significant changes to
retirement health and dental benefits of unit employees without
first notifying the Union and affording it an opportunity to bar-
gain concerning 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 change to retirement
healthcare and dental plans implemented on December 20, 2006,
as it relates to the elimination of all retirement healthcare and
dental coverage for all unit employees and former unit employ-
ees hired after January 1, 2007, restore the unit employees' re-
tirement health and dental benefits to the terms that existed prior
to December 20, 2006, and maintain those terms in effect until
the parties have bargained and agreed to material changes.
(b) Make any unit employees and former unit employees
whole by reimbursing them, with interest as prescribed in New
Horizons, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra, for any loss of benefits suffered as
a result of the unilateral implemented changes in benefits.
(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, personnel records and reports, and
all other records, including an electronic copy of such records if
stored in electronic form, necessary to compliance with the terms
of this Order.
(d) Within 14 days after service by the Region, post at its
Ampthill, Virginia facility copies of the attached notice marked
“Appendix.”83 Copies of the notice, on forms provided by the
change by the Company in terminating retirement healthcare and dental
coverage for employees hired after January 1, 2007.
83 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
E. I. DUPONT DE NEMOURS CO. 27
Regional Director for Region 5, after being signed by the Com-
pany's authorized representative, shall be posted by the Com-
pany immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places where no-
tices to employees are customarily posted. 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, during the pendency of these proceedings, the Company has
gone out of business or closed the facility involved in these pro-
ceedings, it shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
hired at any time after January 1, 2007.
(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
Company has taken to comply.
Dated, Washington, D.C. August 22, 2011
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 activities
WE WILL NOT unilaterally implement material, substantial, and
significant changes to our employees’ retiree healthcare program
without providing the Union notice and an opportunity to bar-
gain.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights
guaranteed them by Federal law.
WE WILL rescind the unilateral material change to retirement
healthcare and dental plans implemented on December 20, 2006,
as it relates to the elimination of all retirement healthcare and
dental coverage for all bargaining unit employees and former
unit employees hired after January 1, 2007, restore the unit em-
ployees' eligibility for retirement health and dental benefits, spe-
cifically, the Medical Care Assistance Program (MEDCAP) and
the Dental Assistance Plan (DAP), to the terms that currently ex-
ist with respect to unit employees hired on or before January 1,
2007.
WE WILL, if requested by the Union, bargain in good faith over
any material change in the eligibility of employees or former em-
ployees hired after January 1, 2007, for retirement healthcare and
dental benefits and, if an understanding is reached, embody such
understanding in a signed agreement.
WE WILL make whole, with interest, any employee hired after
January 1, 2007, who loses retirement healthcare and dental ben-
efits as a result of our unlawful termination of healthcare and
dental coverage for such employees on December 20, 2006.
E. I. DUPONT DE NEMOURS AND COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05-CA-033461 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.

United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”