E.I. DuPont De Nemours (Edge Moor Plant)

National Labor Relations Board - Board Decisions

Oct 11, 2018

367 NLRB No. 12 (N.L.R.B. 2018)

367 NLRB No. 12
JNOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
E.I. Du Pont De Nemours, Louisville Works and Paper,
Allied-Industrial, Chemical and Energy Workers
International Union and its Local 5-2002.
E.I. Du Pont De Nemours and Company and United
Steel, Paper and Forestry, Rubber, Manufactur-
ing, Energy, Allied Industrial and Service Work-
ers International Union (USW) and its Local 4-
786. Cases 09–CA–040777, 09–CA–041634 and
04–CA–033620
October 11, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN,
KAPLAN AND EMANUEL
These consolidated proceedings, again before the Na-
tional Labor Relations Board on remand from the United
States Court of Appeals for the District of Columbia Cir-
cuit, have a lengthy litigation history. For reasons dis-
cussed below, we hold that the Board’s recent decision in
Raytheon Network Centric Systems, 365 NLRB No. 161
(2017), controls here and requires dismissal of the consol-
idated cases in their entirety.
The issue has remained the same throughout this litiga-
tion: whether E.I. du Pont de Nemours, Louisville Works
and E.I. du Pont de Nemours and Company (collectively,
the Respondents) violated Section 8(a)(5) and (1) of the
National Labor Relations Act by implementing annual
unilateral changes to unit employees’ benefits after expi-
ration of collective-bargaining agreements (CBAs) that
contained a reservation of rights provision permitting
widespread and varied unilateral changes. The same
changes were made for nonunit employees whose benefits
were also covered by the company-wide, self-funded
Beneflex Plan. For many years preceding the changes at
issue here, during the terms of successive CBAs, the Re-
spondents had announced Beneflex Plan changes in the
fall and implemented them on January 1 of the new year
without objection from the Unions representing unit em-
ployees at the Louisville, Kentucky and Edge Moor, Del-
aware DuPont facilities. However, annual post-contract-

1 E.I. du Pont de Nemours, Louisville Works (DuPont-Louisville), 355
NLRB 1084 (2010); E.I. du Pont de Nemours and Company (DuPont-
Edge Moor), 355 NLRB 1096 (2010), enf. denied 682 F.3d 65 (D.C. Cir.
2012).
2 The court found the Board’s rationale to be inconsistent with prece-
dent set in the Courier-Journal cases, 342 NLRB 1093 (2004) (Courier-
Journal I), and 342 NLRB 1148 (2004) (Courier-Journal II), Capitol
Ford, 343 NLRB 1058 (2004), and Beverly Health & Rehabilitation Ser-
vices, Inc., 346 NLRB 1319 (2006) (Beverly 2006).
expiration unilateral changes made in 2004 at Louisville
and in 2005 at both Louisville and Edge Moor gave rise to
the refusal-to-bargain complaint allegations at issue here.
On August 27, 2010, the Board issued separate deci-
sions and orders finding that the Respondents violated
Section 8(a)(5) and (1) of the Act by unilaterally changing
the terms of the Louisville and Edge Moor unit employ-
ees’ Beneflex benefit plan.1 In each case, the Board con-
cluded that these unilateral changes were impermissible
because the reservation of rights provision waiving the
Union’s right to demand bargaining did not survive con-
tract expiration. The Respondents petitioned for review of
the Board’s Orders with the United States Court of Ap-
peals for the District of Columbia Circuit, and the Board
cross-petitioned for enforcement.
On June 8, 2012, the court granted the Respondents’ pe-
titions for review, denied the Board’s cross-petitions for
enforcement, and remanded the cases to the Board for fur-
ther proceedings consistent with the court’s opinion. E.I.
du Pont de Nemours & Co. v. NLRB, 682 F.3d 65 (D.C.
Cir. 2012) (DuPont remand). The court concluded that the
Board had departed without reasoned justification from
Board precedent in finding the unilateral changes to Bene-
flex unlawful.2 Specifically, the court interpreted that
precedent as defining the issue as one of past practice, not
“whether a contractual waiver of the right to bargain sur-
vives the expiration of the contract.”3 Further, the court
concluded as a factual matter that the post-expiration
Beneflex Plan changes at issue were similar in scope to
annual changes previously made and, by making them, the
Respondent maintained the status quo expressed in its past
practice.4
The court recognized, however, that the Board’s view
was consistent with earlier precedent.5 Accordingly, the
court remanded the present cases for further consideration
with a specific direction that the Board “conform to its
precedent in Capitol Ford[6] and in the 2006 iteration of
Beverly Health and Rehabilitation Services[7] or explain
its return to the rule it followed in its earlier decisions.”
682 F.3d at 69.
Accepting the court’s remand, the Board consolidated
the Louisville and Edge Moor proceedings and issued a
new decision and order in which the majority affirmed the
prior findings of violations. E.I. du Pont de Nemours, 364
3 682 F.3d at 69 (quoting Courier-Journal I, 342 NLRB at 1095).
4 Id. at 68.
5 E.g., Beverly Health & Rehabilitation Services, 335 NLRB 635,
636–637 (2001) (Beverly 2001), enfd. in relevant part 317 F.3d 316 (D.C.
Cir. 2003), and Register-Guard, 339 NLRB 353, 355–356 (2003).
6 343 NLRB 1058 (2004).
7 See fn. 2, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
NLRB No. 113 (2016) (DuPont 2016). In so doing, the
majority “[chose] the second option identified by the
court, and return[ed] to the rule followed in Beverly 2001
and Register-Guard: that unilateral, post-expiration dis-
cretionary changes are unlawful, notwithstanding an ex-
pired management-rights clause or an ostensible past prac-
tice of discretionary change developed under that clause.”
364 NLRB No. 113, slip op. at 4. The Respondents peti-
tioned the D.C. Circuit Court of Appeals for review, and
the Board filed a cross-application for enforcement.
While the DuPont proceeding was once again pending
before the court, the Board reconsidered the rationale of
DuPont 2016 in Raytheon Network Centric Systems, 365
NLRB No. 161 (2017). The Board majority expressly
overruled the majority’s holding in DuPont 2016 and the
precedent upon which that holding relied, and it returned
to the rule of law from the Courier-Journal cases, Capitol
Ford, and Beverly 2006 that employers do not have to bar-
gain over “changes” to employment terms as long as those
changes are consistent with past practice. In keeping with
other Board cases dating back to 1964,8 the Board held
that actions do not constitute a change if they are similar
in kind and degree to an established past practice consist-
ing of comparable unilateral actions. Raytheon, slip op. at
13. Although an employer may not unilaterally change the
status quo as to a mandatory subject of bargaining, “ac-
tions constitute a ‘change’ only if they materially differ
from what has occurred in the past.” Id., slip op. at 10.
The Raytheon majority also held that this principle applies
regardless of whether (i) a collective-bargaining agree-
ment was in effect when the past practice was created, and
(ii) no collective-bargaining agreement existed when the
disputed actions were taken. Id., slip op. at 13. Finally,
the Board found that actions consistent with an established
practice do not constitute a change requiring bargaining
merely because they may involve some degree of discre-
tion. Id., slip op. at 16. The relevant consideration is
whether the particular challenged action constitutes a ma-
terial departure from past practice, regardless of how that
past practice developed.
Applying this standard, the Board in Raytheon held that
the employer did not violate Section 8(a)(5) when, after
the expiration of the parties’ collective-bargaining agree-
ment and while negotiating a new contract with the union,
it made unilateral changes to the bargaining-unit employ-
ees’ health benefits in January 2013, as it had done every
year from 2001 to 2012. The Board majority held that the
employer’s 2013 modifications to employee healthcare
benefits did not constitute a “change” requiring notice and

8 Shell Oil Co., 149 NLRB 283 (1964); Westinghouse Electric Corp.
(Mansfield Plant), 150 NLRB 1574 (1965).
9 DuPont remand, 682 F.3d at 68.
an opportunity to bargain under NLRB v. Katz, 369 U.S.
736 (1962), because the 2013 benefit plan modifications
did not vary materially from the changes made in prior
years, the changes were made at the same time of the year
as in past years, and they applied to unionized and non-
unionized employees alike (as had been the case in prior
years). Raytheon, slip op. at 18. Thus, the changes were
consistent with the employer’s established practice and
did not trigger a duty to bargain simply because some em-
ployer discretion was involved. The Board majority also
emphasized that even when past practice permits an em-
ployer to take the same or similar unilateral actions, an
employer is nevertheless required under Section 8(a)(5) to
bargain with the union over mandatory subjects of bar-
gaining upon the union’s request to do so. Id., slip op. at
18–19.
In view of the Board’s express overruling of DuPont
2016 in Raytheon, the Board filed a motion requesting that
the court remand this case back to the Board so that it
could reconsider the case in light of its current precedent
established in Raytheon. Neither Union involved in this
proceeding opposed the motion. By Order dated January
9, 2018, the court remanded the case back to the Board.
In effect, the proceeding before us now stands in the
same posture as after the court’s 2012 remand. This time,
however, Raytheon stands as a reaffirmation of the prece-
dent from which the court found the Board’s 2010 deci-
sions departed without explanation. Taking the remand
choice of applying that precedent—the choice rejected by
the DuPont 2016 majority―we now hold that the Re-
spondents’ 2004 and 2005 changes to the unit employees’
Beneflex Plan benefits were consistent with a long-stand-
ing past practice of annual changes established over sev-
eral years of the parties’ collective-bargaining relation-
ship. The changes did not materially vary in kind or de-
gree from the changes made in prior years. They were
made at the same time—January—as in past years, and
they applied to unit and nonunit employees alike. There-
fore, as the D.C. Circuit had already concluded in its ear-
lier decision, the Respondent, “by making unilateral
changes to Beneflex after the expiration of the CBAs,
maintained the status quo expressed in the Company’s
past practice,”9 which warrants a conclusion that the
changes were lawful under the Supreme Court’s decision
in Katz.
For these reasons, we find that the Respondents did not
violate the Act by making the changes described above
without providing the Unions advance notice and the op-
portunity for bargaining.10
10 Our dissenting colleague acknowledges that the substantive argu-
ments she briefly raises here are the same as those raised by her and for-
mer Member Pearce in Raytheon. For the reasons fully set forth in the
E.I. DU PONT DE NEMOURS, LOUISVILLE WORKS 3
ORDER
The complaints are dismissed.
Dated, Washington, D.C. October 11, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
In the recent Raytheon decision,1 a divided Board over-
ruled the Board’s immediately prior decision in this case,2
even though the case was awaiting oral argument in the
United States Court of Appeals for the District of Colum-
bia Circuit3 and the Board no longer had jurisdiction over
it.4 The Raytheon Board took this step without providing
any prior notice and opportunity to be heard to the DuPont
parties (or anyone else). In principle, of course, the Ray-
theon decision necessarily controls this case. But not only
was Raytheon wrongly decided for the reasons explained
in the dissent there, but the Raytheon majority also vio-
lated administrative due process in overruling the Board’s
earlier DuPont decision. The Unions here, which had pre-
vailed before the Board, were stripped of their victories,
with no process at all.

majority opinion in Raytheon, we reject those arguments. Similarly, our
colleague raises the same alleged administrative due process objections
to the overruling of the prior DuPont 2016 decision that she and former
Member Pearce raised in dissent with respect to the Boeing majority de-
cision in The Boeing Co., 365 NLRB No. 154 (2017), and to the major-
ity’s denial of a nonparty’s motion to intervene and for reconsideration
in The Boeing Co., 366 NLRB No. 128 (2018). Those objections were
not raised by the Unions in this case before the court prior to remand and
have not been raised by the Unions before us on remand. For the same
reasons fully set forth by the majority in the Boeing decision and in the
Boeing order denying the motion to intervene, we find no merit in the
dissent’s procedural objections here.
1 Raytheon Network Centric Systems, 365 NLRB No. 161 (2017).
Then-Member Pearce and I dissented. See id., slip op. at 21 (dissenting
opinion).
2 E.I. DuPont de Nemours, 364 NLRB No. 113 (2016) (DuPont 2016).
3 E.I. du Pont de Nemours & Co. v. NLRB, No. 16-1357 (D.C. Cir.)
This case thus presents the same due-process problem
implicated in the recent Boeing decision.5 In that decision,
as explained in the dissent, the Board majority violated the
basic tenets of administrative due process by depriving the
prevailing party in a prior case of the benefits of a favora-
ble decision without providing notice and opportunity to
be heard “at a meaningful time and in a meaningful man-
ner.”6 I cannot condone my colleagues’ decision to make
the same mistake again by casting aside the principles of
due process in this case.
I.
The majority’s opinion recites the complicated – in-
deed, tortured – history of this case, which involves events
in 2004 and 2005, more than 13 years ago. The issue is
whether after the expiration of a collective-bargaining
agreement that authorized the employer to make discre-
tionary, unilateral changes in employees’ terms and con-
ditions of employment, the employer may keep making
such changes, even as the employer and union are trying
to negotiate a new agreement. As the majority recounts,
the Board previously has found such changes unlawful, is-
suing decisions twice before, first in 2010 and then again
(after a 2012 remand from the District of Columbia Cir-
cuit7) in 2016. Perhaps this third time will be a charm, but
there are reasons to think not.
The latest decision is necessitated by Raytheon. But
Raytheon itself was deeply flawed, with respect to both
process and substance. To begin, the Raytheon majority’s
decision to revisit and overrule DuPont 2016 was unjusti-
fied and unnecessarily destabilized Board law. The Dis-
trict of Columbia Circuit’s 2012 remand decision had
made clear that the Board was free to choose the approach
taken in DuPont 2016.8 But the Raytheon majority started
from the mistaken premise that the Board’s decision was
improper: “inconsistent with Section 8(a)(5)” of the Na-
tional Labor Relations Act” (which establishes an
4 Under Sec. 10(e) of the Act, the Board loses jurisdiction over a case
once the record is filed in a reviewing federal court of appeals. 29 U.S.C.
§160(e).
5 The Boeing Co., 366 NLRB No. 128 (2018) (denying motion to in-
tervene). Member Pearce and I dissented. See id., slip op. at 4. See also
The Boeing Co., 365 NLRB No. 154 (2017) (reversing Rio All-Suites
Hotel & Casino, 362 NLRB 1690 (2015)). Member Pearce and I dis-
sented, separately. See id., slip op. at 23 (Pearce dissent), 29 (McFerran
dissent).
6 366 NLRB No. 128, slip op. at 8 (quoting Mathews v. Eldridge, 424
U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)).
7 E.I. du Pont de Nemours & Co. v. NLRB, 682 F.3d 65 (D.C. Cir.
2012).
8 Id. at 70 (explaining that Board had “failed to give a reasoned justi-
fication for departing from its precedent” and that “[o]n remand, the
Board must either conform to its precedent . . . or explain its return to the
rule it followed in its earlier decisions”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
employer’s duty to bargain) and impossible to “recon-
cile[] with the Board’s [statutory] responsibility.”9
As Member Pearce and I explained in our Raytheon dis-
sent, however, it is the majority position that is flatly con-
trary to the Supreme Court’s decision in NLRB v. Katz,
369 NLRB 736 (1962),10 and impermissible as a policy
choice, given the stated aim of the National Labor Rela-
tions Act to “encourage the practice and procedure of col-
lective bargaining.”11 Permitting employers to make dis-
cretionary unilateral changes, without a union’s prior
binding consent, undermines collective bargaining under
any circumstances––regardless of what previously may
have been permissible by mutual agreement.
II.
It serves no purpose now, however, to reargue the merits
of Raytheon. I adhere to my dissenting view there. My
focus today is on a distinct aspect of Raytheon: its over-
ruling of Dupont 2016 without first providing the union
parties in this case with notice and opportunity to be heard.
Just like the majority’s approach in Boeing, the approach
taken by the Raytheon majority violated administrative
due process––and so Raytheon should be revisited, instead
of being applied here.12
The Board is undeniably required to observe due pro-
cess, as defined by the Constitution and Section 554(c) of
the Administrative Procedure Act (APA), which requires
federal agencies to “give all interested parties opportunity
for . . . the submission of facts [and] arguments . . . and
hearing and decision on notice.”13 Notice and an oppor-
tunity to be heard are essential requirements of due pro-
cess, as an early Supreme Court decision involving the
Board illustrates.14 And charging parties in a Board case,
such as the Unions here, have a protectable due-process

9 Raytheon, supra, 365 NLRB No. 161, slip op. at 1.
10 In Katz, the Supreme Court rejected the argument that an em-
ployer’s discretionary, unilateral merit wage increases were not a viola-
tion of the statutory duty to bargain, because they were consistent with
the employer’s longstanding past practice. 369 U.S. at 746–747. A
“continuation of the status quo” of discretionary unilateral action, the
Court explained, was “tantamount to an outright refusal to negotiate …
and therefore a violation of [Sec.] 8(a)(5)” of the Act. Id.
11 National Labor Relations Act, Sec. 1, 29 U.S.C. §151.
12 See, e.g., Enloe Medical Center, 346 NLRB 854, 855–856 (2006)
(granting reconsideration in part, based on due process grounds).
13 5 U.S.C. §554(c). See, e.g., Independent Electrical Contractors of
Houston, Inc. v. NLRB, 720 F.3d 543, 552 (5th Cir. 2013) (applying prin-
ciples of “administrative due process, reflecting constitutional stand-
ards,” and citing APA to find that respondent employer was entitled to
notice of legal theory of liability applied by Board). See also Interna-
tional Telephone & Telegraph Corp. v. Local 134, Int’l Broth. of Elec-
trical Workers, 419 U.S. 428, 448 (1975) (the “Board’s procedures are,
of course, constrained by the Due Process Clause of the Fifth Amend-
ment”).
14 Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197, 218–
219 (1938) (Board violated due process by invalidating collective-
interest, as illustrated by the Supreme Court’s Scofield de-
cision, which held that the charging party is entitled to
seek judicial review of an adverse Board order and to in-
tervene in an appellate reviewing proceeding in order to
defend a favorable Board order.15
The Unions in this case, then, were entitled to know that
the Raytheon Board contemplated overruling DuPont
2016 (and stripping the Unions of their victory in that
case) and were entitled to be heard by the Board before it
reached its decision. The “right to be heard ensured by the
guarantee of due process ‘has little reality or worth unless
one is informed that the matter is pending and can choose
for himself whether to appear or default, acquiesce or con-
test.’”16 The Board could easily have issued a notice and
invitation to file briefs, as it has done in many cases.17
Similarly, nothing prevented the Board from seeking a re-
mand of this case from the District of Columbia Circuit
before (not after) Raytheon was decided, which would
have given the DuPont parties notice that the issue was
under reconsideration and an opportunity to defend their
position.18 Alternatively, the Raytheon majority could
have opted to make their new interpretation of the law pro-
spective only in its effect, so as not to disturb the vested
interests of the parties in DuPont while the case remained
active and under consideration by the Court of Appeals.19
Instead, the Raytheon majority cut corners and secretly re-
adjudicated the rights of the parties in DuPont––not just
unwisely and unfairly, but improperly.
III.
For all of the reasons offered here, and in my Raytheon
dissent with Member Pearce, I would adhere to the
Board’s 2016 decision in this case and find that the Re-
spondent violated Section 8(a)(5), as alleged.20
bargaining agreement without first making signatory union party to
Board proceeding). See generally Richards v. Jefferson County, Ala-
bama, 517 U.S. 793, 797 fn. 4, 799 (1996).
15 International Union, UAW v. Scofield, 382 U.S. 205 (1965).
16 Richards v. Jefferson County, Alabama, supra, 517 U.S. at 799,
quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950).
17 See Boeing, supra, 365 NLRB No. 154, slip op. at 31 (dissenting
opinion) (collecting cases).
18 See, e.g., E.I. du Pont de Nemours, 274 NLRB 1104, 1104 (1985)
(subsequent history omitted) (Board decision reconsidering prior deci-
sion: Board requested remand from court of appeals, case was remanded,
charging party was permitted to intervene, and parties were invited to file
statements of position).
19 See, e.g., Total Security Management Illinois 1, LLC, 364 NLRB
No. 106, slip op. at 11–12 (2016); American Baptist Homes of the West
d/b/a Piedmont Gardens, 362 NLRB 1135, 1140 (2015); Babcock & Wil-
cox Construction Co., Inc., 361 NLRB 1127, 1139–1140 (2014).
20 The majority observes that the Unions did not raise a due-process
objection in the District of Columbia Circuit before this case was re-
manded. But in Boeing, supra, an analogous case, the majority actually
seized on the charging party union’s opposition to remand from the Ninth
E.I. DU PONT DE NEMOURS, LOUISVILLE WORKS 5
Dated, Washington, D.C. October 11, 2018 ______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD

Circuit as a reason not to permit the union to intervene before the Board.
366 NLRB No. 128, slip op. at 2–3. Surely, then, the majority must con-
cede that the Unions should be free to raise the due-process objection
before the Board. On that score, the Board apparently failed to solicit
statements of position from the parties here, following the remand, as is
frequently done. In any case, the Unions remain free to raise the due-
process issue to the Board on a timely motion for reconsideration of this
decision under Sec. 102.48(c) of the Board’s Rules and Regulations.