DuPont Specialty Products USA, LLC, as a successor to E.I. du Pont de Nemours and Company

National Labor Relations Board - Administrative Judge Opinions

Oct 11, 2019

05-CA-222622 (N.L.R.B. Oct. 11, 2019)

JD–79–19
Richmond, VA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DUPONT SPECIALTY PRODUCTS USA, LLC,
as a successor to E. I. DU PONT DE NEMOURS
AND COMPANY,
and Case 05–CA–222622
AMPTHILL RAYON WORKERS, INC.,
LOCAL 992, INTERNATIONAL
BROTHERHOOD OF DUPONT WORKERS.
Decision
and
Recommended Order
DAVID I. GOLDMAN
Administrative Law Judge
Counsel:

Andrea J. Vaughn, Esq. (NLRB Region 5)
of Baltimore, Maryland, for the General Counsel
Kenneth Henley, Esq. (Law Office of Kenneth Henley)
of Boca Rotan, Florida, for the Charging Party
Theresa A. Queen, Esq. and David Barger, Esq. (Greenberg Traurig, LLP)
of McLean, Virginia for the Respondent
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Table of Contents
Page
Decision.......................................................................................................................... 1
Introduction ............................................................................................................... 1
Statement of the case ............................................................................................... 1
Jurisdiction ................................................................................................................ 2
Unfair Labor Practices............................................................................................... 2
Findings of Fact .................................................................................................. 2
A. Background.............................................................................................. 2
B. DuPont’s emergency services.................................................................. 3
C. ERT problems.......................................................................................... 6
D. The decision to subcontract emergency services .................................... 7
E. Announcement to unions of plan to subcontract the ERT....................... 12
1. Preparation for meeting with unions ................................................. 12
2. June 18 meeting with unions............................................................ 12
3. Preparation for June 19 meeting with unions.................................... 13
4. June 19 meeting with unions............................................................ 13
F. The ARWI files an unfair labor practice charge; a complaint is
made through the DuPont hotline........................................................... 15
G. July 20 meeting; July 25 follow-up letter
from Holmes .......................................................................................... 16
H. September 1 implementation of subcontracting ..................................... 17
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Table of Contents (continued)
Page
Analysis............................................................................................................. 18
A. The failure and refusal to bargain
over the emergency services ................................................................. 18
1. The duty to bargain over the
emergency services subcontracting decision ................................... 18
2. Contractual and waiver defenses ..................................................... 27
3. Effects bargaining ............................................................................ 31
B. The unilateral implementation of the
emergency services subcontracting ....................................................... 31
Conclusions of Law ........................................................................................... 32
Remedy............................................................................................................. 32
Order................................................................................................................. 34
Appendix
JD–79–19
1
DECISION
INTRODUCTION
5
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case considers an employer’s
statutory duty to bargain with its employees’ union over the subcontracting of emergency services
work historically performed by employees at the employer’s synthetic fiber production facility.
The government and the union allege that the employer’s admitted refusal to bargain over 10
the subcontracting decision violated the employer’s bargaining obligations under the National
Labor Relations Act (Act). The government and the union further contend that the employer’s
subsequent unilateral implementation of the subcontracting decision also violated the Act. The
employer argues that the subcontracting decision and implementation were outside the ambit of
Act’s bargaining obligations. For the reasons discussed herein, I agree with the government and 15
the union find that the employer violated its bargaining obligations under the Act.
STATEMENT OF THE CASE
On June 21, 2018, the Ampthill Rayon Workers, Inc., Local 992, International Brotherhood 20
of DuPont Workers (Union or ARWI) filed an unfair labor practice charge alleging violations of the
National Labor Relations Act (Act) by DuPont, Inc., docketed by Region 5 of the National Labor
Relations Board (Board) as Case 05–CA–222622.1 Based on an investigation into this charge, on
November 28, 2018, the Board’s General Counsel (General Counsel), by the Region 5 Acting
Regional Director, issued a complaint and notice of hearing in this case. The Employer filed an 25
answer denying all violations on December 12, 2018, and an amended answer on May 31, 2019.
A trial in this matter was conducted June 4–6, 2019, in Richmond, Virginia.2 A
posthearing joint motion of Counsel for the General Counsel and Counsel for the Respondent to
correct the transcript was granted by order dated August 8, 2019. Counsel for the General 30
Counsel and the Respondent filed post-trial briefs in support of their positions by August 12, 2019.
Counsel for the Respondent filed a letter of supplemental authority on September 20, 2019.
Counsel for the General Counsel filed a response on September 30, 2019.
1In the portion of the charge filled in by Region 5 personnel (top right corner of GC Exh. 1(a)),
the charge is listed as being filed on June 18, 2018. Based on (1) the representations of counsel
(Tr. 11), (2) the declaration supporting the charge indicating the charge was filed June 21, 2018,
(3) the attachment to the charge alleging an announcement on June 20, 2018, as a basis for the
charge, and (4) the undisputed record evidence that key events on which the charge was based
occurred on June 18 and 19, 2018, I find that the charge was filed June 21, 2018.
2At the commencement of the hearing, the General Counsel moved to amend paragraph 5(b)
of the complaint to correct an error in the date pled for the final effective date of a collective-
bargaining agreement. This unopposed motion to change the date from August 1 to September
1, 2018, was granted. Further, at the commencement of the hearing, the Respondent admitted
the supervisory and agency status under the Act of Andre Holmes, Darrin Meenach, and Cheryl
Yanoschak. (Tr. 12–14.) Finally, at the hearing, the parties agreed that the correct name of the
Respondent is DuPont Specialty Products USA, LLC, as a successor to E. I. du Pont de Nemours
and Company (Tr. 8, 183–185), and the caption is amended to reflect this. Throughout this
decision the Respondent is referred to as DuPont or Employer or Respondent.
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On the entire record, I make the following findings, conclusions of law, and
recommendations.
JURISDICTION
5
At all material times, the Respondent has been a corporation with an office and place of
business in Richmond, Virginia, and has been engaged in the business of manufacturing
synthetic fibers and related products. In conducting its operations during the 12-month period
ending October 31, 2018, the Respondent sold and shipped from its Richmond, Virginia facility
goods valued in excess of $50,000 directly to points outside of the State of Virginia. It is alleged 10
and admitted that at all material times the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), and (6), of the Act. It is further alleged and
admitted that at all material times the Union has been a labor organization within the meaning of
Section 2(5) of the Act. Based on the foregoing, I find that this dispute affects commerce within
the meaning of Section 2(7) of the Act, and that the Board has jurisdiction of this case, pursuant 15
to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
20
Findings of Fact
A. Background
DuPont has operated the Spruance plant, located along the southern border of the city of 25
Richmond, in Chesterfield County, Virginia, since 1929. The site is comprised of over 500 acres
and currently includes some production by other or related companies. For many years—longer
than 45 years, as testified to by the witness in our hearing with the most seniority— the three
major products produced at the Spruance plant by DuPont have been the synthetic materials
Kevlar, Tyvek, and Nomex. Two additional major products—Zytel and Mylar—are produced 30
onsite by separate or related companies. The Spruance plant operates with four rotating shifts,
and a fifth fixed-day shift. On this basis, the plant is in production 24 hours a day, seven days a
week.
Since 1947, the production and maintenance employees at the plant have been 35
represented for purposes of collective bargaining by the ARWI. Currently the Union represents
about 1,000 production and maintenance employees. In addition, the ARWI represents a
separate bargaining unit at the facility currently composed of less than 100 clerical, technical and
office employees at the facility. The International Brotherhood of Electrical Workers (IBEW) also
represents a bargaining unit of instrument and electrical workers. The Mylar plant onsite has an40
independent union representing employees. In total there are approximately 2000 employees at
the plant, but a significant number are non-bargaining unit “exempts,” i.e., clerks, technical
operators, and engineers.
The ARWI and DuPont have negotiated numerous collective-bargaining agreements over 45
the years covering the terms and conditions of bargaining unit employees. A September 2012
agreement covering the production, maintenance, service and technical wage roll employees was
renewed in 2015 (the 2015 Agreement). A new agreement for this unit was negotiated during the
JD–79–19
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summer of 2018, and went in to effect on September 1, 2018 (the 2018 Agreement). That
agreement is scheduled for termination no earlier than August 21, 2022.3
In addition to impromptu meetings as necessary, the ARWI’s executive committee
regularly meets twice a month with the Employer to discuss labor-management issues arising 5
during the term of the contract that are not directly part of the grievance procedure. As the union
chairman for the executive committee, Donny Irvin, explained, the committee “handle[s] the day-
to-day operations at the plant. So any rule, procedure, anything that needs to be bargained that’s
not contractual comes to the exec committee.”
10
The chemicals and production processes involved in the plant’s production carry a
potential for risk of employee and even community injury. The risk of fire, explosion, or exposure
to toxic chemicals is taken seriously by all involved with the operation of the plant. Over the years
there have been incidents that led to groups of employees having to, at least, be evaluated at the
hospital. At the same time, as far as the record shows, the use of these chemicals and processes 15
at the plant has been longstanding, and inherent to the production processes. There were no
changes in this regard in many years. DuPont maintains an extensive array of safety-related and
emergency-related protocols and procedures, including beginning each meeting, no matter the
subject, with some reference to a safety issue. This is called a “safety contact.”
20
B. DuPont’s emergency services
For many years, at least since 1974, and until the recent unilateral subcontracting that is
the source of the instant dispute, DuPont maintained an emergency response team (ERT) at the
Spruance plant composed largely of bargaining-unit employees from the Union. 25
The Spruance Plant ERT was composed of a fire brigade, hazmat team, and a medical
emergency response team (MERT). The MERT members had EMT level B training to provide
first-aid and medical care for illness and injury in incidents short of IDLH events. The ERT (fire
and hazmat) and MERT were separate until approximately 2008, when they merged under the 30
heading ERT. The ERT’s function was to respond to emergency calls at the site, including
conditions caused by adverse weather, gas releases, smoke alarms, fires, spills, rescues, medical
first aid, and other emergencies. The fire brigade responded throughout the facility and was often
activated by someone pulling one of the fireboxes situated throughout the facility. MERT was
responsible for any type of medical emergency and responded to firebox pulls but also to a 35
medical emergency number on the plant’s internal phone exchange.
3The bargaining unit covered by the 2015 and 2018 Agreements is composed of the following
Spruance plant DuPont employees:
All production, maintenance, service and Plant technical hourly wage roll
employees at the Plant included within the unit appropriate for collective bargaining
purposes certified in an order of the National Labor Relations Board in cases Nos.
5-R-2724, 5-R-2773, 5-R-2791 bearing date of January 31, 1947, but excluding all
employees classified as instructors, instructresses, security officers, United Service
Employees, employees when working as relief supervisors and supervisors-in-
training, and all supervisory employees set forth ln said cases with the authority to
hire, promote, discharge, discipline or otherwise effect changes in the status of
employees or effectively recommend such action.
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A central fire station housed a hazmat truck and a pumper truck, and there was additional
firefighting equipment in trailers by the fire station. MERT had an ambulance and each MERT
member carried their own “MERT bag” with needed medical supplies.
Routinely the ERT members responded to reports of smoke, or flames, and employee 5
accidents and injuries. In many cases these were small matters—for instance the smoke might
be determined to have come from a motor or belt that was misfiring or burning up—but, of course,
any such report had to be investigated. In the more unusual case—arising a few times/year”—
that involved a serious fire or incident “immediately dangerous to life or health” (IDHL), fire and
emergency medical services from the city of Richmond or Chesterfield County were called in to 10
take over. The ERT captain on duty was usually charged with assessing whether the ERT would
need backup.4
The parties agree that no governing laws or regulations require that DuPont maintain an
ERT. Nor do any of DuPont’s internal policies. 15
Until it was subcontracted to a contractor named FDM on September 1, 2018, DuPont’s
ERT served as a first-line responder for the entire Spruance facility. This included the separately
operated Zytel and Mylar plants onsite as well as the plant utilities operation that since February
2018, has been run by a company called Veolia.20
The ERT was staffed by bargaining unit employees—mostly from the ARWI, and about six
to eight from the IBEW unit—and also by a few “exempt” nonunit employees who volunteered to
train for and participate in the fire brigade and MERT units. In the spring of 2018, there were
approximately 52 total members, 29 in the fire brigade and 23 with MERT. As of September 1, 25
2018, there were approximately 40-50 employees who were members of the fire brigade and
hazmat and somewhat less than 20 on the MERT group.5
4According to documents prepared by DuPont for discussion with the Union (GC Exh. 14 at 4),
in 2016, the ERT responded to 721 calls and in 2017, it responded to 657 calls. In both years, the
overwhelming bulk of the ERT calls involved evaluating confined space permits. Fires accounted
for 2 and 3 percent of the calls; medical constituted 6 and 8 percent. Here, I reproduce the data
set forth in the Respondent’s June 14, 2018 (GC Exh. 14 at 4) memo on the subject:
What is the breakdown of the calls that Emergency Service’s responds to?
Data for the past 2 years is as follows:
2016 2017
Total Calls 721 657
Confined Space Permits 568 (79%) 479 (73%)
Investigations 24 (3%) 57 (9%)
Medical 46 (6%) 55 (8%)
Fire Alarms 49 (7%) 33 (5%)
Fire 12 (2%) 18 (3%)
Miscellaneous 16 (2%) 10 (1%)
HazMat 5 (1%) 5 (1%)
5I am not confident of the accuracy of these numbers, although the precise numbers are not
critical to the case. I note that R. Exh. 28, which is undated, but which was composed sometime
after March 26, 2018, lists 27 fire/hazmat/CS members and 23 EMS members.
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Each of the plant’s rotating 8-hour shifts (shifts A, B, C, and D) was staffed to ensure there
was sufficient ERT presence 24/7 at the plant. (The permanent day shift—to which many senior
employees gravitated over time—did not have a fire brigade, although it did have a MERT group.)
There was a requirement of between six and eight fire and hazmat employees per shift, and a
minimum of two per shift for the MERT side. 5
Like a community volunteer fire department, the ERT-member employees worked their
regular production, maintenance, or other jobs at the facility, and responded to a possible medical
or fire emergency when they were at work and an alarm or other call went out for their services.
In the fire brigade, an employee typically began as a firefighter and with additional training could 10
progress to a pump operator, then a lieutenant, and ultimately to the highest role for unit
employees, captain. A chief supervised the ERT and he was a non-bargaining unit supervisor.
ERT members came from all the different areas of the plant, for a variety of reasons. As
the Union’s Executive Committee Chairman Irvin testified, “We tried to come up with a plan that 15
would evenly disperse the membership across the site,” which lessened the response time,
heightened the ability of the plant to continue running with remaining staff during an ERT incident,
and met DuPont’s concern that the cost of the ERT be dispersed through the cost centers
attributed to the various product lines. In addition, as Irvin explained:
20
It was always important to us that we had people from the area responding
because they would be the most knowledgeable people of the area. . . . [E]very
area had its own hazard and it was most beneficial so that when the whole brigade
responded, you had a resident expert that was there that knew about the hazards
and . . . where they were, where to turn them off, and it was just was really 25
important to us.
Although employees “volunteered” for the ERT jobs, the work was paid. Employees were
paid for their time training, for completing certifications, and for responding to calls. Pay was
based on their regular salary. Because it was in addition to their regular work at the plant—which 30
itself might include overtime pay—much of the emergency services work was paid at overtime
rates. Each individual’s daily or weekly entitlement to overtime pay for ERT work was based on
his or her overall hours. For some employees, the ERT provided a lucrative source of additional
hours and overtime pay over the course of the years. Although employees chose to be on the
ERT, they could be disciplined and/or removed if they failed to perform their duties including 35
attending or completing required trainings. Completion of all the training required for new or
prospective ERT members could take up to a year of monthly course work and practical training
until they were ready. Through a combination of overtime in their regular production or
maintenance job, and overtime performed on ERT, ERT employees were some of the highest
paid employees at the plant.40
The provisions of the ERT program and changes to it were routinely negotiated with the
ARWI executive committee. In one instance, in 2007, the parties entered into a settlement
agreement after a dispute over a proposed decrease in training hours for the fire brigade. After
months of dispute, the Union agreed:45
that the parties have reached the point of impasse after 18 meetings with respect
to the bargaining concerning the Emergence Response Team (ERT) that has been
ongoing since December 2007, and the Union agrees that it will not object to the
Company implementing the ERT training hours proposal [as attached]. 50
JD–79–19
6
In exchange for the Union’s agreement the Company promised that:
current ERT members will be made whole by providing training opportunities . . . 5
for the months of February and March 2008, [however,] [i]n the event the NLRB
Regional Director determines backpay is appropriate in lieu of training
opportunities . . . that determination will supersede the Company’s obligation to
provide make-up training opportunities for current team members for February and
March 2008. 10
More frequently, the bargaining over ERT was routine and agreements accomplished
without dispute. Monthly training schedules were developed by DuPont and then approved by the
Union’s executive committee. In recent years, there had been extensive bargaining over changes
made to ERT overtime policy. In 2016, a new fire captain, Terry DeGuentz, pushed for adoption 15
of more strenuous qualification requirements. A change from local training standards to a
national “Pro-Board” certification for ERT firefighters was discussed and bargained with the
Union. However, when employees had difficulty passing the training, at some point in 2017,
management bargained with the Union a limit of three chances for an applicant to take the Pro-
Board test for firefighter. At one point, in response to staffing concerns, management and the 20
Union even discussed the possibility of requiring employees to apply for the fire brigade.
Ongoing staffing difficulties led to further ERT bargaining. In the Spring of 2017, after
negotiations in which DuPont feared that a bargaining impasse would be likely (GC Exh. 15 at
12), there were agreements reached between the Union and DuPont to permit the use, in 25
prescribed circumstances, of Chesterfield County firefighters to fill out the roster of the ERT when
insufficient employee members could be induced to sign up for particular shifts.
In response to persistent Union demands to create an ERT on the permanent day shift, in
2017, DuPont agreed to establish a daytime fire brigade, but the details were not worked out 30
before the subcontracting in this case rendered the issue moot.
C. ERT problems
Richard Lukhard, a veteran of the Chesterfield County Fire and EMS, became Spruance’s 35
chief of emergency services—more colloquially referred to as the fire chief—in July 2017.
Lukhard replaced Terry DeGuentz, who left in April 2017.
At the hearing, Lukhard testified to the difficulties that DuPont was having staffing the
ERT. There were not enough applicants, and a number of the applicants could not pass the 40
training, or once beginning training had withdrawn from the program. As employees who were on
the fire brigade retired, DuPont had some difficulty replacing them. Between 2016 and 2018,
there were periods of time when there were vacancies in the ERT fire brigade which DuPont had
trouble filling.
45
Lukhard testified that the practical portion of the Pro-Board testing was done at Louisiana
State University (LSU) and there was significant expense in having to transport applicants there,
particularly because a number of applicants were failing the Pro-Board testing multiple times.
Lukhard first proposed in September 2017, limiting the number of times an applicant could take
the Pro-Board test and eventually did away with Pro-Board testing altogether, after creating 50
graphs for his direct supervisor—Cheryl Yanoschak—making the case that “we could do training
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for the brigade just as efficiently locally without having to go to LSU and not be Pro Board
certified.” Lukhard also expressed concern that even for employees interested, and dedicated
and capable, “getting the experience is very difficult.” He testified: “There is not a lot of calls for
service or emergency calls thank goodness to run. But so you can go through training and you
can do all the required training, but you still don’t have the real-world experience of going out 5
there and dealing with . . . these emergencies.” Another problem described by Lukhard was that
at times ERT members were performing critical work in their regular position and could not leave
work to address an ERT call. If there were insufficient ERT members on staff on a given shift this
could create a problem with ERT responses.
10
Lukhard testified that apart from the problems of Pro-Board testing, he viewed with
concern what he saw as a decreasing pool of employees interested in being on the ERT. Due to
retirements and departures “there was not a very good field of folks that could train up or that
were interested in training up to become officers, lieutenants and captains and shift commander.”
Lukhard testified that “I didn’t see a good pool of folks coming up that the desire and/or the 15
potential to fill those officer vacancies and critical positions.” In particular, there was trouble
staffing the officer positions on the fire brigade—the lieutenants and the captains. DuPont
Program Manager Darrin Meenach attributed this to the fact that those positions require more
expertise, more training and “substantial leadership to make the right calls and lead the teams.”
20
D. The decision to subcontract emergency services
Sometime in the spring of 2018, DuPont made the decision that beginning September 1,
2018, it would subcontract the Spruance plant emergency services work to a company called
FDM. This decision was made without disclosing the matter to the unions until mid-June.625
Lukhard laid claim to initiating the idea and looking into its feasibility. He testified that the
subject of contracting out the ERT first came up between him and his direct supervisor,
Yanoschak, “in December time frame of 2017,” at which time he started doing “a lot of the
background leg work to see if it was even feasible.” Lukhard testified that his “actual 30
recommendation” to management that the ERT be contracted out occurred in the “early March
[2018] time frame,” or into April, when he gave a power point presentation to the “the senior
leadership team, although “[o]bviously, I had conversations with my direct supervisor, Cheryl
Yanoschak, prior to that presentation.”
35
The record does not state who this “senior leadership team” was (Lukhard does not say).
Other than a power point presentation (discussed below), there is no documentation of what was
said to them. Of the Respondent’s three witnesses at the hearing (Holmes, Meechan, and
Lukhard), only Lukhard testified to involvement in the decision. But the evidence shows that the
matter was presented up the ladder—to Lukhard’s supervisor, Yanoschak, to “somebody in 40
corporate” named Kimberly Richardson, and to L.G. Tackett, who was interim plant manager but
referred to in documentation as the Global Operations Manager of Safety and Construction.
Once a Spruance plant manager was named, Tackett was the individual to whom the Spruance
plant manager reported. Based on internal DuPont documents, other DuPont managers were
involved in the decision. On April 24, Yanoschak sent an email to Tackett seeking his approval to 45
6I note that throughout this decision I use the terms “contracting out” and “subcontracting”
interchangeably to describe the Respondent’s plan to use FDM to perform emergency services
work historically performed by the Respondent’s employees.
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8
move forward with the contracting out plan.7 Tackett responded to this request for approval by
asking for a summary of the proposal that he could share with other managers: “Cheryl, can you
put me a couple-page summary on this I can share with Rose and Brent. Perhaps I can set a call
up and you can share.”
5
DuPont Human Resources Manager Andre Holmes, then chief bargainer for DuPont at
Spruance, later wrote an email on July 11, 2018, in which he declared that the subcontracting
decision had been approved by Rose Lee, VP of Safety and Construction, and by Tackett.
Neither Yanoschak, nor Tackett, nor Lee, nor Richardson, nor Brent, testified at the 10
hearing.

Thus, although he was not the decision maker on the subcontracting, Lukhard’s opinion as
to why he was in favor of the contracting out was the only one presented at the hearing. To
summarize, Lukhard testified that he made the recommendation to contract out the ERT based on 15
the “potential significant hazards” used, stored, and transported on site, “challenges with staffing .
. . especially with the critical leadership positions,” and difficulty obtaining experience for new ERT
members. Lukhard complained of lack of physical fitness of some of the ERT members and
recruits, and cited a few examples of what he viewed as inadequate performance by ERT
members.8 Based on all of this, Lukhard testified that he made “the recommendation that we 20
should bring contract, dedicated folks that already had experience.”
7 Yanoschak wrote:
Bobby Lukhard and I spoke with both Kimberly Richardson and the Spruance
Labor Team yesterday to bring them up to speed on where we are with our
Emergency Services Future State and Contingency Plan. We are now ready to
move forward with getting a contract in place with FDM to provide contract
emergency services personnel and begin spending to get the 12 contract
personnel hired, trained and in place as our contingency plan (strike or otherwise).
The current estimate is that it will take 75-90 days to get “ready” state (15-30 days
to get a contract in place, 30 days to get personnel hired, and 30 days to do all the
training we can off-site) Once FDM gets all 12 folks hired, we will be spending at a
rate of $60M/month and will carry that added cost until bargaining is completed or
we are forced to put the contract team in place and not pay for DuPont staffing.
Both Kimberly and the Spruance Labor Team support our plan and us moving
forward immediately. Do we have your approval to drive forward? [Original
Emphasis.]
Lukhard admitted speaking with Richardson. However he denied speaking about the
subcontracting to the “Spruance Labor Team.” I note that Yanoschak’s email is the first
suggestion that DuPont viewed the subcontracting as part of a collective-bargaining strategy, with
implementation planned for the expiration of the current labor agreement, either in response to a
strike or the completion of bargaining.
8At Yanoschak’s direction, in mid-2018—well after the subcontracting decision had been
made and announced—Lukhard started documenting “serious issues,” many related to staffing,
that the ERT was having. This document (R. Exh. 37) listed five incidents discovered or
researched by Lukhard in May and June 2018, where an ERT team member was late or failed to
show up for a training or shift. This list was created after the decision to contract out was made,
and after the Union’s unfair labor practice had been filed, surely in defense of both.
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In addition at the hearing, Lukhard made a point of claiming that, at least as far as he was
concerned, the decision to contract out, “had nothing to do with money from my perspective,
because I didn’t even know what the cost involved was going to be when I first . . . started
working on the recommendation.” According to Lukhard, 5
It had everything to do with the inability to recruit qualified experienced members,
and the . . . concern with the hazards on the site and the potential emergencies
that could occur and not having qualified folks and not seeing any answer, quick
answer to the lack of sustainability of the system. . . . [T]o me it was an 10
unsustainable system that had been the victim of just time and the change in the
world today with volunteerism and people stepping up that want to help.
Notwithstanding Lukhard’s testimony as to his own motivations, the documentary evidence
makes clear that in the spring of 2018, as DuPont finalized its plans (in secret from the Union) for 15
subcontracting the emergency services work, the associated cost savings were not an
insignificant consideration.
In his testimony, Lukhard suggested (Tr. 524) that in recommending the subcontracting to
DuPont leadership he presented them with a power point demonstration in the spring of 2018. He 20
did not specifically identify the power point presentation but there are two in the record from that
time period.
A March 15, 2018 five-slide power point for a Spruance staff meeting—each page of which
was marked “confidential”—set out a proposal for two options for contracted emergency services. 25
(GC Exh. 12.) Option 1 provided for 9 firefighters each working 3-person 24-hour shifts, with 3
DuPont exempt employees performing the roles of shift commanders to the FDM staff. Option 2
provided for 12 firefighters working 3-person 12 hour shifts, with 4 DuPont exempt employees
performing the roles of shift commanders to the FDM staff. Slide 3 of this power point was titled
“Summary of Costs.” It stated:30
Summary of Costs
• Current Costs =$2.0MM
• Training
• Staffing & Confined SpaceOvertime35
• Fire InspectorPosition
• Immediate cost reduction from elimination of Pro-Board Training
and Testing =$350M spent over past 2 years
• Contract Option 1 (24hr) =$980M Savings= $1..0MM Annually*
• Contract Option 2 (12hr) =$1.3MM Savings =$675M Annually40
*Note: There is a one-time cost associated with Option 1 to
provide living quarters for 24-hr personnel = $175M
The next page of the power point presentation (slide 4) listed the “Soft/Added Benefits” of 45
the contracting out. This page listed the elimination of “Fatigue Risk Management implementation
issues,” the “rededication” and “focus[ ]” of DuPont hourly employees to their area assignments,
JD–79–19
10
the creation of “Dedicated and Experienced Full-Time Emergency Responders,” the ability to do
“Continuous training . . . mostly on-site during normal work hours,” faster response times, and
“enhanced . . . rescue planning support.”
A final slide (slide 5) lists “concerns & risks,” noting “potential walkout of current members 5
when discussion of contracting starts,” and also a concern with “contract staffing turnover,” which
it is also noted “should be mitigated if we can offer [a] 24-hours on/48-hours off shift schedule.”
The above cost projections were restated in an updated power point dated April 24, 2018,
created by DuPont. (GC Exh. 13.), and perhaps by Lukhard. See, Tr. at 524. The updated power 10
point was similar to the earlier March 15 power point, but reflected DuPont’s decision to go with
Option 1 for contracted emergency services, entailing the 24-hour shifts. As to costs it stated:
Summary of Costs
• Current Costs =$2.0MM
• Training15
• Staffing & Confined SpaceOvertime
• Fire InspectorPosition
• Future State Option = $1.0MM Savings= $1.0MM Annually
• One-time costs associated with thetransition:
• On-site living quarters for 24-hr personnel = $175-200M20
capital
• Contingency Plan (Strike or Walk Out) = $75M/month
incost
• 75-90 days to get contract in place, complete
hiring andprovide initial training. Will then have25
"carrying" cost each month that DuPont staffing
remains in place when contract team is set up and
ready to go
The April 24 version—also sent with a warning to “maintain confidentiality”-- reflected that 30
DuPont had chosen to use 12 total contracted employees—9 firefighters each working 3-person
24 hour shifts, with 3 DuPont exempt employees as shift commanders. The power point restated
that there would be cost savings of $1 million annually by moving to the contracted emergency
services, and also noted two “one-time costs associated with the transition”: first, a cost of $175-
200,000 to create on-site living quarters for the contract employees working 24 hour shifts, and 35
second, a $75,000 a month cost for the summer of 2018 to ready the contract employees in the
event of a “strike or walk out” by unit employees before September 1, 2018.
An email accompanying the March 15 and April 24 power point was sent by Yanoschak to
then HR Manager and chief bargainer Holmes, DuPont Program Manager Darrin Meenach (who 40
also had collective-bargaining and labor agreement implementation responsibilities at Spruance),
labor consultant Valerie Jacobs, and Mary Anne Sparks, a DuPont labor relations analyst. In the
email, Yanoschak instructed the group to keep the power point presentations confidential and not
JD–79–19
11
to share their contents with anyone other than Jacobs, Lukhard, Yanoschak, Tackett, and John
Lee (unidentified in the record), and Sparks.
Other evidence of the centrality of the cost savings to the decision to subcontract is found
in an April 27, 2018 email exchange on which Lukhard and Yanoschak were copied. In it, Tackett5
approved a “cost sourcing variance request” requested by Lukhard, but prepared by DuPont
contract administrator Keith Jenkins writing under Lukhard’s name. The document, which
appears to present justification for failing to seek competitive bids for the contract with FDM to
staff the fire and emergency services, states:
10
Variance Impact on Requesting Business (benefits or negatives as a result of
this variance):
Comments From Requestor:
15
One month time frame for bidding, contract issue, and site
training to support this effort. There is no other\ supplier that
supplies this type of service from a local basis. Site will recognize
a significant cost savings in overtime as a result of this effort.
20
Plans for the contracting went ahead in the spring of 2018. Lukhard was familiar with the
contractor, FDM, and approached them and one other company about whether they could provide
the 24-hour coverage that DuPont would want. FDM was responsive and ended up being hired.
As set forth in a June 18 email between DuPont managers, the plan was that under the FDM
arrangement that there would be four FDM firefighters on site at any given time, “always with site 25
apparatus, whether at the Fire House or out on the site doing practice and training, so they can
get quickly to a scene for a size up and call for additional resources if needed.” With FDM,
DuPont would continue to contact “county Fire and EMS for additional support for the few
times/year that we need to provide an offensive approach into an IDLH environment—just as we
have set up today.”30
The documentary evidence suggests that the contract with FDM was finalized in early
June, with a three-year contract signed for a total of $4 million. The only change in operation from
earlier drafts was that initially the shift commanders would be FDM personnel, meaning that all
four emergency services personnel on the shift would be FDM employees. There would be three35
of these four-person shifts, each composed of two fire fighters, one lieutenant, and one shift
commander. However, DuPont made clear internally that “Within the first year we expect to
transition the Shift Commander’s position to a DuPont Exempt position.” The contract with FDM
was written to permit DuPont to make that change at its sole election.9
40
According to the job descriptions written by Lukhard and on which basis the FDM
employees were hired, the shift commanders (be they FDM or DuPont employees) were to take
“first line direction from the Chief of Emergency Services,” i.e., from Lukhard. They were also to
“[c]onduct investigations, report findings, and make recommendations to the Chief for disciplinary
9The final contract with FDM stated:
At any point during the period of agreement, DuPont may elect to transition the
Shift Commander position from a contract position to a DuPont exempt position
with 60 days' notice to FDM, thus FDM will reduce the required workforce and
billing accordingly.
JD–79–19
12
actions.” The firefighters and lieutenants were to perform projects and duties “assigned by the
Shift Commander and/or Chief.” Thus, the contractors were under operational control of DuPont’s
Emergency Services Chief, i.e., Fire Chief Lukhard.
Lukhard wrote the job descriptions for the FDM positions. FDM did the hiring but Lukhard 5
reviewed applicants’ “bios to make sure they met the expectation of the job descriptions.” These
employees were hired—or, at least, were identified and accepted employment—in the spring of
2018, perhaps in May or June.
E. Announcement to unions of plan to subcontract the ERT10
1. Preparation for meeting with unions
As mid-June approached, DuPont made plans to tell its employees and unions that it was
going to subcontract the emergency services. 15
On June 14, 2018, Yanoschak sent Meenach, Jacobs, Holmes, and Sparks an email with
a draft “Q&A” about the upcoming ERT contracting out. She indicated that this was to be finalized
into a document that could be used in discussions with the unions in an upcoming meeting.
20
Among the benefits of the contracting out of emergency services touted on the Q&A draft
were faster response times, increased skill and capability, improved overall service, and
Reduced cost of services—Significant reduction in overtime, training, and
equipment and apparatus cost.25
The Q&A indicated that there were no other fire protection changes “being considered at this time
. . . in addition to the Emergency Services changes.”
2. June 18 meeting with unions30
Andre Holmes, an HR consultant for DuPont, and at time the lead bargainer for the
Spruance plant, scheduled a meeting for June 18, with the President of the ARWI, James
Palmore, and the business manager of the Spruance plant IBEW, Craig Irvin. Attending the
meeting with Holmes was Meenach and Valerie Jacobs, a consultant who assisted DuPont with 35
collective-bargaining negotiations.10
At the meeting, Holmes informed Palmore and Irvin that DuPont “had made a decision to
outsource our emergency services.” There was little discussion after this. Palmore asked if
DuPont was “going to bargain it,” and said that he wanted DuPont to meet with the ARWI 40
executive committee. Holmes promptly scheduled a meeting for the next day, June 19, with the
executive committee, describing the subject of the meeting in the invitation email as an
“Emergency Response Discussion.”
10As noted, at the commencement of the hearing DuPont admitted the supervisory and
agency status of Meenach and Holmes under the Act. However, it denied allegations of Jacobs’
similar status. I find that based on the record evidence—her attendance at labor-relations
meetings on behalf of DuPont, the hiring of her to assist with collective-bargaining, and her
inclusion and participation in confidential correspondence deemed only for management, and no
contrary evidence—that Jacobs is an agent of the Respondent under the Act.
JD–79–19
13
3. Preparation for June 19 meeting with unions
That evening, June 18, at 8:30 PM, Yanoschak sent an email to Jacobs, copying Meenach 5
and Holmes, providing answers for questions about the contracting out for use by management in
the next day’s meeting with the Union executive committee. Yanoschak’s email included an
answer to Jacobs’ question about the “financials”:
Financials- $1.7MM overtime costs (staffing and confined space support); Training Costs10
$450M. Cost of the contract services $ 1.1MM ($1MM Savings annually).
It also included an answer to the question of whether, if staffing overtime on the ERT were
eliminated through an increase in employees available for ERT per shift, would the current in-
house model be a good “financial option.” The answer provided was that if the situation could 15
return to as in “years past when they used to have 25-26 people/shift . . . we could possibly
eliminate staffing overtime.” However, according to Yanoschak this would mean increased
training costs of about $250,000, would lead to too many people leaving their job assignments to
respond to a call, and “[f]inally, our past 2 years of experience trying to recruit folks, has been less
than fruitful or successful.” 20
The email also provided information about the costs associated with “support[ing]
individual confined space rescue[s]”—estimated to be $2000 per entry, with the anticipation that
the “full time contract emergency staff” would support confined space entry needs as part of their
staffing costs. In addition, the email answered questions about how other local plants and other 25
DuPont plants handled emergency services. The practice at other DuPont facilities was mixed.
The local companies with which Lukhard was familiar used a model similar to the Spruance
plant’s current model.
The email also made clear that with FDM as the contractor there would be four FDM 30
firefighters on site at any given time, “always with site apparatus, whether at the Fire House or out
on the site doing practice and training, so they can get quickly to a scene for a size up and call for
additional resources if needed.” With FDM, DuPont would continue to contact “county Fire and
EMS for additional support for the few times/year that we need to provide an offensive approach
into an IDLH environment—just as we have set up today.”35
4. June 19 meeting with unions
The meeting with the unions took place at 11 AM. Present for the ARWI were Donald
Irvin, Mickey Galderise, James and Keith Palmore, David Roney, Colby Creech, and Eric Irvin, 40
and Kevin Chaplin. Craig Irvin, the business agent from the IBEW was also present. For
management, present were Holmes, Meenach, Jacobs, and Yanoschak.
Before the meeting, at 9:01 AM, DuPont distributed by email “to all Spruance Employees,”
an Employee Information Bulletin, stating that:45
The Spruance site has notified the ARWI P&M and the IBEW unions’ leadership
that we intend to transition to contracted out emergency services beginning
September 1, 2018. We will be talking to the unions to explore how to manage
through the transition.50
JD–79–19
14
Holmes led the meeting. After beginning with a “safety contact,” he turned to the point of
the meeting: to announce that DuPont had made the decision to contract out the ERT. Holmes
stated that “We said that the decision was management’s, but we would bargain the effects of
outsourcing the emergency services.” Holmes told the Union “we do not want to be in the fire 5
business. We want to make products for the plant.” Holmes made clear to the Union that “I am
not here to bargain” about the decision to contract out the ERT. However, he indicated that
DuPont would be willing to meet to bargain the effects of the contracting-out decision and that
DuPont wanted a smooth transition to the contracted emergency services on September 1, 2018.
Holmes told the Union that “[w]e understood that there would be a loss of overtime for our 10
employees and that it would affect our employees. So we were willing to have those discussions
with the Union.” According to Irvin, Holmes said that the ERT was “costly, and we can reduce the
cost.” Irvin asked him, “are you willing to bargain that?” Holmes replied, “I am not here to
bargain. I am here to tell you what we are going to do.”
15
At the hearing there was a pointed credibility dispute about the rationale provided at this
meeting by Holmes and the management team for the subcontracting. Holmes testified that he
told the Union “that we are basing this on skills and capabilities.” DuPont wanted “better quality
firemen,” “professionals.” In his testimony, Holmes adamantly denied that he or the other DuPont
negotiators mentioned costs or cost savings as a rationale for the subcontracting decision. 20
Irvin disputed this. He testified that Holmes and the management team relied on cost
savings as the rationale for the ERT subcontracting—indeed, it was the only motivation for it that
he recalled them stating. Irvin’s notes from the meeting reference “Item #1 ERT elimination of all
– outsource/2.1 million/reduce plt cost – what is the cost?/refusing to bargain.” Irvin testified that 25
$2.1 million was the amount that DuPont management said in this meeting that the ERT had cost
in the previous year. Irvin testified that he questioned Holmes at the meeting as to how he came
up with the figure of $2.1 million, but that he did not get answers other than “its costly, and we can
reduce the cost.”
30
Both Holmes and Irvin agree that Irvin asked about the costing associated with the ERT
and its outsourcing, and whether DuPont would be saving money by replacing the ERT with
contractors. Irvin testified that management responded by saying that “we will be able to save a
substantial amount of money for the plant site.” This prompted Irvin to ask Holmes “what the
price difference was between the two.” Holmes told Irvin that “if I was making an information 35
request, to put it in writing.” Irvin retorted that an oral request “should suffice in a bargaining
situation,” to which Holmes replied this “wasn’t a bargaining session.”
However, at the hearing, Holmes repeatedly and emphatically denied saying anything at
the June 19 meeting about cost savings. When Irvin said that “if the Company really wanted to 40
save money, you wouldn’t staff any of it . . . . you could just . . . do away with the fire services and
use Chesterfield Fire Department,” Holmes testified that he considered Irvin to be being “a little
smart aleck,” and that therefore there was no response made to this comment. However,
Meenach testified that there was a response, that “[w]e said that’s not the case. It’s not about the
cost. We could do that, but that’s not the plan. We need to have safe, professional emergency 45
responders on the plant site.”
Holmes maintained that in response to Irvin’s questions about the cost savings associated
with the outsourcing, either Meenach or Yanoschak “[a]t that time, we told him we didn’t know.
We hadn’t crunched numbers to see what the savings were around. The decision was basically 50
to improve the site’s capability to respond to emergencies.” Holmes testified not only had he not
JD–79–19
15
stated that cost savings was behind the contracting out decision, but that he told Irvin and the
Union in the meeting that he “did not know if there was any cost savings.” Holmes testified that at
that time of the June 19 meeting he had no knowledge of whether or not there was cost savings
associated with the contracting out. Meenach also testified that he did not provide any cost
figures to the union in the meeting because he did not know that information at the time. In fact, 5
Meenach, in his testimony, went even further. Asked at the hearing what Irvin said in the June 19
meeting about the contracting out saving the Company money, Meenach responded, somewhat
nonresponsively: “So we made it clear that it wasn’t about cost. It was about making sure we had
the right staffing levels and the right safety at the plant.”
10
The difficulty with Holmes and Meenach’s insistence that they did not speak of costs or of
savings, because they did not know anything about the subject—as if the thought of cost savings
had never occurred to them—is that the internal DuPont documents, referenced above, pointedly
contradict their claim. These documents demonstrate that costs savings associated with the
contracting out—specifically cost savings from reduced overtime and training costs—were15
something that all management attendees at the June 19 meeting (Holmes, Meenach, Jacobs,
and Yanoschak) were cognizant of and had discussed in emails. Indeed, as recently as June 14,
this group had been on emails where the projected cost savings of the ERT contracting out was
specifically discussed as a talking point for the upcoming discussions with the Union. Holmes
even admitted on cross-examination to reviewing documents containing cost estimates before 20
attending the June 19 meeting. No explanation for this glaring contradiction has been offered.
Given this, it is easy to conclude (and would be hard not to conclude) that Holmes and
Meenach’s testimony that as of the June 19 meeting they had no knowledge of the costs
associated with the subcontracting or the ERT was flatly false. This strenuously offered but false25
claim was offered by Holmes and Meenach as corroboration, indeed, as supporting proof, that
they did not and could not have mentioned cost savings as a rationale for the subcontracting in
the June 19 meeting. But it is not believable because the evidence shows that Holmes and
Meenach were well aware of the specific cost savings from overtime and training anticipated by
DuPont as a result of the subcontracting. For this reason, I am inclined to believe Irvin’s 30
testimony that cost savings was offered as a rationale for the subcontracting, and to disbelieve
Holmes and Meenach’s emphatic testimony that it was not. Moreover, the fact that the talking
points prepared for this meeting by DuPont included reference to cost savings as one advantage
of the contracting out, and further, separately referenced overtime and training costs concerns,
further leads me to lean toward believing Irvin, and disbelieving Meenach and Holmes on this 35
point. Costs were an issue for DuPont in its preparation for this meeting, and DuPont evinced an
intent to be prepared to discuss that issue with the unions. Given this, it is plausible that it was
mentioned, as testified to by Irvin, and I credit his account.
F. The ARWI files an unfair labor practice charge;40
a complaint is made through the DuPont hotline
Two days after the meeting, on June 21, 2018, the Union filed an unfair labor practice
charge over DuPont’s refusal to bargain over the decision to contract out the ERT.
45
DuPont maintains a hotline which employees can call to register complaints. In response
to a complaint that a new manager was “offering jobs to his old partners that he used to work with
in Chesterfield,” Holmes responded on July 11, in a message that appears to assume that the
new manager in question is Lukhard. Holmes’ message acknowledges that the subcontracting
“will end many hours of overtime” for employees “resulting in a loss of additional income”:50
JD–79–19
16
The Spruance Site leadership has been looking at ways to improve productivity,
yields, people capability, and various other ways to become more cost-effective.
Recently, the site management informed the Ampthill Rayon Workers, Inc. (ARWI)
and International Brother of Electrical Workers (IBEW) that the decision has been
made to contract out the site Emergency Response Services. This decision was 5
approved by Rose Lee, VP of Safety and Construction, and LG Tackett,
Global Operations Manager of Safety and Construction. The site understands that
this decision is a very emotional issue for those employees who volunteer to
support the Spruance Emergency Response Services, as it will end many hours of
overtime resulting in a loss of additional income. The third-party contract is with 10
FDM Safety Services, a professional firefighting organization that has provided
services for the DuPont Spruance site in the past, and prior to Emergency
Response Services Chief Robert Lukhard's employment with DuPont.
G. July 20 meeting; July 25 follow-up letter from Holmes15
Irvin and the rest of the executive committee were invited to another meeting about the
ERT with management on July 20. Holmes sent an email listing the subject of the meeting as
“Emergency Response Effects Negotiations.” Holmes, Jacobs, and Ida Harris attended for
management. (Harris was identified in the record as a DuPont HR Consultant as of April 13, 20
2017. See, GC Exh. 6 at 3) Holmes testified that one purpose of the meeting was to supply the
Union with the cost information that had been requested by the Union at the June 19 meeting.
When Irvin arrived at the meeting he noticed that not only was the ARWI’s executive committee
there, but also the IBEW’s bargaining committee.
25
The meeting began with a safety contact and then Holmes announced that he had called
the meeting to start the effects bargaining over the subcontracting. Early in the meeting,
Meechan provided the Union with information about the overtime and training costs for 2017 for
the ERT program. Holmes testified that it “equaled up to about $2 million bucks.” Meechan
testified that the overtime cost $1.5 million, the training costs were $600,000, for a total of $2.1 30
million. Meechan testified that no information was provided about the cost of the new contracted-
out emergency response program.
Irvin asked Holmes if he was bargaining. Holmes said no. Ms. Jacobs said, “we are here
to bargain the effects of our decision.” Irvin said that the Union was there to bargain over the 35
ERT. According to Holmes, Irvin said something to the effect that “at this point . . . I’m not
bargaining anything out of a labor charge.” Jacobs reiterated that “we will only bargain the
effects.” The Union took a caucus and when they returned Irvin and his team made clear they
would not do the effects bargaining, they had a “labor charge” and walked out. At the hearing,
Irvin testified that the principal reason for walking out was the Union’s view that DuPont needed to 40
engage in decisional bargaining and it had made clear that it would not. As they were walking
out, Holmes asked the IBEW business agent what its position was. The IBEW representative
said, “same as the ARWI.” That was the end of the meeting.
By letter dated July 25, Holmes wrote the ARWI Executive Committee, stating:45
As you know, we have offered to negotiate with you about this matter. On
July 20, 2018, you refused to negotiate because you had filed an unfair labor
practice charge. In the absence of your input we are forced to proceed without
your input. Naturally, we are happy to meet and negotiate this issue at any time.50
JD–79–19
17
Holmes’ letter went on to provide a July and August schedule for the training of the FDM
contractors on and off site, and using the ERT fire trucks, hazmat, and other equipment. Finally,
the letter confirmed that a full transition to the ERT contractor was scheduled for September 1,
2018. Evidence suggested that DuPont paid approximately $60-75,000 during July and August
2018, when it had the FDM employees in place and training but before it ended the DuPont ERT 5
program on September 1.
By email dated August 10, 2018, Yanoschak sent an email to Lukhard, and other DuPont
officials—that she told them to keep confidential—setting forth the “ongoing annual savings and
not just 1-time” savings associated with the subcontracting. Based on 2017, Yanoschak’s chart 10
estimated annual overtime savings of $732,936 by using the contractor.
Notably, by August 20, a DuPont manager was openly expressing concern to other
managers as to whether the contracting out should be justified in communications to employees
as being based on cost advantages, fearing that such an admission would “create issues” with the 15
unfair labor practice charge pending against DuPont. In an August 20, email exchange devoted to
reviewing drafts of communications to go to the plant about the changeover to FDM, Labor
Consultant Sparks stated that
I am still on the fence on including ‘reduced cost of service.’ I am thinking that once 20
we have the final version, I would like to run this by our legal team as there is a
current ULP on this issue and we want to make sure we are not creating issues.
In the email exchange, Yanoschak endorsed Sparks’ “updates to my wording.”
25
H. September 1 implementation of subcontracting
The subcontracting was implemented as scheduled on September 1. There is no
evidence (or claim) that the day-to-day work of the facility—the production, the maintenance work,
the types of products produced—changed in conjunction with the contracting out of ERT. 30
As far as emergency services, they have operated as planned, with the contracted
employees working 24-hour shifts. With the exception of a building to house the contracted
employees during their 24 hour shifts, there is no new facility or building from which the FDM
employees service the Spruance plant. They are onsite and respond as needed to calls relating 35
to emergency services. Instead of having six personnel for every shift as there were under the
employee-staffed model, there are now four during any shift, and the four are now cross-trained
as EMTs and firefighters. The FDM contractors continue to rely on Chesterfield County for
assistance in the “few times/year” when they need to offensively enter an ILDH or handle a
situation beyond the FDM capability. 40

Lukhard testified that with the FDM contractors performing the emergency services it is
“totally different because they are dedicated emergency services members,” whose entire work is
about preparing for, training, and being involved in emergency services. Lukhard cited that
response time had dropped, with all ERT employees coming from a central location, but on cross 45
examination he admitted that the advantage of all ERT members coming from a central location
would vary depending on the part of the plant to which they were responding.
Lukhard testified that there is an ongoing $10–11 million investment by DuPont to upgrade
the Honeywell fire alarm and emergency communication systems over the next four years. He 50
also testified that that “[w]e have a long range plan to get every building on the site to have
JD–79–19
18
sprinkler protection,” a cost he estimated to be a $10 million investment over the next 5-7 years.
Lukhard also testified that DuPont was investing directly in emergency services by investing in
new extrication equipment, upgraded hazardous-chemical monitoring equipment, as well as
spending approximately $800,000 on the building to provide onsite living quarters for the
contracted emergency services employees.115
I note that none of these expenditures was documented in any fashion and, with the
exception of the accommodations for the new contractors, none of this was shown or even
claimed to be in any way dependent on, tied to, or linked to the contracting out.
10
Analysis
The complaint alleges (GC Exh. 1(c) at ¶¶ 6 &10) that since about June 18, 2018, and
thereafter, the Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing
to bargain over the emergency services work. Further, the complaint alleges (GC Exh. 1(c) at ¶¶ 15
7&10) that about September 1, 2018, the Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally subcontracting the emergency services work without providing the Union an
opportunity to bargain.
A. The failure and refusal to bargain over emergency services 20
1. The duty to bargain over the emergency
services subcontracting decision
Section 8(a)(5) of the Act provides that it is an unfair labor practice for an employer “to 25
refuse to bargain collectively with the representatives of his employees.” Under Section 8(d) of
the Act mandatory subjects of bargaining include “wages, hours, and other terms and conditions
of employment.” As the Supreme Court explained in Fibreboard Paper Products Corp. v. NLRB,
379 U.S. 203, 210–211 (1964), the contracting out of unit work
30
is well within the literal meaning of the phrase “terms and conditions of
employment” . . . The inclusion of “contracting out” within the statutory scope of
collective bargaining also seems well designed to effectuate the purposes of the
National Labor Relations Act. One of the primary purposes of the Act is to promote
the peaceful settlement of industrial disputes by subjecting labor-management 35
controversies to the mediatory influence of negotiation. The Act was framed with
an awareness that refusals to confer and negotiate had been one of the most
prolific causes of industrial strife. National Labor Relations Board v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 42–43 [(1937)]. To hold, as the Board has done,
that contracting out is a mandatory subject of collective bargaining would promote 40
the fundamental purpose of the Act by bringing a problem of vital concern to labor
and management within the framework established by Congress as most
conducive to industrial peace.

Thus, in Fibreboard, the Supreme Court held that an employer’s “replacement of 45
employees in the existing bargaining unit with those of an independent contractor to do the same
work under similar conditions of employment” is a mandatory subject of bargaining. Id. at 215.
11I note that Lukhard’s figure of $800,000 for the accommodations is undocumented and far in
excess of the March 15 and April 24 power point reports which anticipated a one-time cost of
$175,000—$200,000 to provide living quarters for FDM staff. GC Exh. 12 at 3; GC Exh. 13 at 2.
JD–79–19
19
However, the Court in Fibreboard recognized that not every form of arrangement called
contracting out or subcontracting necessarily falls within the ambit of the duty to bargain. 379
U.S. at 215. In his influential concurrence in Fibreboard, Justice Stewart distinguished the
subcontracting at issue in Fibreboard, where employees are replaced with those of an 5
independent contractor to do the same work, from other types of management decisions
“concerning the commitment of investment capital and the basic scope of the enterprise” that “lie
at the core of entrepreneurial control.” 379 U.S. at 223. This latter type of decision, for which
bargaining is not required, was discussed by the Supreme Court in First National Maintenance,
452 U.S. 666 (1981), where the Court concluded that a management decision involving “a change 10
in the scope and direction of the enterprise, is akin to the decision whether to be in business at
all,” and the type of decision over which an employer has no duty to bargain. Id. at 677, 686–688.
Consistent with Fibreboard and First National Maintenance, the Board has long held that a
decision to subcontract the work of employees that is unaccompanied by any substantial 15
commitment of capital or change in the scope of the business is not a decision at “the core of
entrepreneurial control” and, therefore, is a mandatory subject of bargaining. Torrington
Industries, 307 NLRB 809 (1992); Spurlino Materials, Inc., 353 NLRB 1198, 1218 (2009)
(“Subcontracting of bargaining unit work that does not constitute a change in the scope, nature, or
direction of the enterprise, but only substitution of one group of workers for another to perform the 20
same work is clearly a mandatory subject of bargaining”), reaffirmed 355 NLRB 409 (2010);
Sociedad Espanola de Auxilio Mutuo y Beneficia de P.R., 342 NLRB 458, 458 (2004), enfd. 414
F.3d 158 (1st Cir. 2005), enfd. 414 F.3d 158 (1st Cir. 2005).
In this case, the Spruance plant emergency services work had for many decades been 25
performed by bargaining unit (and some non-bargaining unit) DuPont employees. They were paid
for the work and, indeed, it was a major source of overtime for those employees who sought,
trained and qualified for ERT positions. As DuPont recognized in its internal discussion and
documents, this overtime was a significant cost to DuPont—over $1.6 million in 2017—and along
with savings in training costs, the subcontracting was variously anticipated by DuPont to save it 30
$732,000 to $1 million annually. (See, GC Exh 13 at 3; GC Exh. 12 at 3; GC Exh. 17 at 2 (item
8); GC Exh. 21 at 3). As a result of DuPont’s decision to subcontract, this work and the training
for it would no longer available to unit employees. However, the work continued to be done,
onsite at the Respondent’s facility, utilizing the same equipment and resources, and even
remaining under the control and direction of the DuPont. By the contract with FDM, Chief 35
Lukhard directly supervised the contract shift commanders and could assign work to the
remaining FDM employees. Lukhard even wrote the job descriptions for the contract employees
and had input into their hiring. Moreover, DuPont’s stated plan was to subsequently replace the
contracted-FDM shift commanders with “exempt” DuPont employees. Finally, it is notable that
even after the subcontracting, DuPont—now using a contractor instead of employees—continued 40
to ensure and take responsibility for emergency services throughout the entire Spruance plant
(everywhere “within the fence line”) including the separately operated Zytel and Mylar plants, and
even at the utilities operation operated onsite by a company named Veolia since February 2018.
Indeed, in January 2019, DuPont entered into an agreement with Veolia to continue to provide
emergency services to utilities operations for the next 18 years. This is hardly a case, as Holmes 45
tried to convince the Union, of DuPont “not want[ing] to be in the fire business.”
As of September 1, 2018, the contractor’s employees performed the same emergency
services work that the DuPont employees used to perform. The work was not eliminated or
moved from the Spruance plant. Although it could have—no law or regulation requires that 50
DuPont maintain an onsite emergency services—DuPont did not cease providing for emergency
JD–79–19
20
services at the Spruance plant. It did not shut down a segment of the Spruance plant operations.
Rather it continued to provide for emergency services with the use of contract work force under its
control. The work and responsibilities were transferred to a contractor that the Respondent hired
to do the emergency services work. I conclude that this closely resembles “Fibreboard
subcontracting” and the decision is subject to the duty to bargain.5
There are differences, to be sure, between the working conditions of the new contractor
employees and the unit employees---there are fewer new contractors per shift, they work longer
shifts, and their work is exclusively emergency-services related work—they do not perform the
emergency services work as an addition to a production or maintenance job. But these changes 10
in work—all changes, of course, that by themselves fall within the core of the duty to bargain, and
all changes decided upon, adopted, and maintained by DuPont and its Chief Lukhard—do not in
any way change the fundamental work or duties that the contractor employees are performing:
they are assigned and are performing the emergency services work, at the same location, in the
same manner, and under the same plant conditions. Fibreboard refers to similar conditions, not 15
identical ones, and DuPont has not fundamentally eliminated or changed anything.
In its brief, DuPont stresses that no unit employees lost their jobs—only overtime
opportunities—on account of the contracting out of the ERT. However, the overtime losses are
significant. As Holmes admitted in his July 11 response to the “hotline” inquiry, DuPont 20
understands that this decision is a very emotional issue for those employees who
volunteer to support the Spruance Emergency Response Services, as it will end
many hours of overtime resulting in a loss of additional income.
25
In any event, even in the absence of immediate impact on unit employees’ hours of work
the Board still requires bargaining over otherwise bargainable subcontracted work. Mi Pueblo
Foods, 360 NLRB 1097, 1097–1098 (2014) (“bargaining is not excused simply because no driver
was laid off or experienced a significant negative impact on his employment . . . . [T]he Board
has held that when bargaining unit work is assigned to outside contractors rather than bargaining 30
unit employees, the bargaining unit is adversely affected”); Bob’s Tire Co., 368 NLRB No. 33, slip
op. at 6 (2019) (loss of opportunities for increased overtime adversely affects unit); Overnite
Transportation, 330 NLRB 1275, 1276 (2000); Acme Die Casting, 315 NLRB 202 ft. 1 (1994).
Contrary to the claims of the Respondent, there is simply nothing about the decision that 35
constitutes “a change in the scope and direction of the enterprise” (First National Maintenance
Corp. v. NLRB, 452 U.S. 666, 677 (1981)) or “lie[s] at the core of entrepreneurial control.”
Fibreboard, 379 U.S. at 223 (Stewart, J. concurring).

First of all, as referenced above, DuPont did not eliminate the function of emergency 40
services from that basket of services, production, and support, that is performed as part of the
operation at the plant. The work was not relocated to another part of the country or a different
plant. Another company has not come in and paid DuPont to use DuPont’s emergency
equipment, its land, and utilities. It is not even the case that the emergency services work is now
performed by a new entity located elsewhere that only comes to the Spruance plant episodically 45
to handle emergencies as they arise. Rather, DuPont now provides the emergency services with
a contracted 12-person fulltime crew—which remains under DuPont’ Fire Chief Lukhard’s ultimate
control—rather than with a group of part-time DuPont employees. This is Fibreboard
subcontracting.
50
JD–79–19
21
Equally to the point, the Spruance plant’s products, production processes, and business
are unaffected by this change in the employment arrangements for supplying emergency
services. Emergency services is necessary and important work for a synthetics production plant
but it is tertiary to the plant’s nature and purpose. The change in the employment arrangement
for the individuals performing emergency services did not impinge on the nature, purpose, or 5
scope of the enterprise. Mi Pueblo Foods, 360 NLRB at 1098 (“The Respondent remained in the
business of warehousing and delivering products, and the Respondent's decision to change the
manner in which products of one of its suppliers reached most of its stores did not involve matters
at the core of its enterprise”); Power, Inc., 311 NLRB 599, 599 (1993) (finding duty to bargain over
subcontracting of operation and maintenance of rock trucks and graders and drilling operations, in 10
part, because “the Respondent continued to mine, process, and sell coal; it did not substantially
change its production process”), enfd. 40 F.3d. 409 (D.C. Cir. 1994).12
Indeed, in this regard, the Board has specifically rejected employer efforts to narrowly
characterize the business as the subcontracted work in an opportunistic effort to claim that the 15
subcontracting at issue changed the scope or direction of the business.
For example, in Bob’s Big Boy, 264 NLRB 1369 (1982), an administrative law judge found
that an employer that prepared foodstuffs for individual restaurants had changed the nature and
direction of its business—and therefore did not have to bargain about the decision—by 20
contracting out the preparation of shrimp. The Board reversed, in reasoning worth setting out
here:
In our view, a proper analysis of this case begins with an accurate characterization
of Respondent's business. While it is literally correct to say that Respondent was 25
in the shrimp processing business, we find that to be too narrow a description of
Respondent's business. More accurately, Respondent is in the business of
providing prepared foodstuffs to its individual restaurants. Thus, shrimp
preparation existed as a component part of Respondent's business along with the
preparation of meats, salad dressing, produce, and bakery goods and did not 30
constitute a separate and distinct business enterprise. With this more accurate
definition of Respondent's business before us, we can engage in more meaningful
analysis of whether Respondent's action is suitable to collective bargaining or
whether it is a decision that goes to the very core of entrepreneurial control.
35
Our dissenting colleagues' characterization of Respondent's business, like that of
the Administrative Law Judge, artificially fragments Respondent's enterprise and
ignores the fundamental purpose of its operation. Respondent provides prepared
foods to its retail restaurants. It did so before contracting with Fishking to prepare
breaded shrimp, and it does so after that agreement. The issue presented is thus 40
readily distinguishable from First National Maintenance and from other cases
involving the termination of an independent portion of a respondent's operations.
In First National respondent totally ceased servicing the nursing home where the
12See also, Holmes & Narver, 309 NLRB 146 (1992) (finding that an employer's internal
reorganization of jobs for its mechanics in its motor pool to give them additional duties required
bargaining, because the decision did not entail abandoning a line of business, ceasing business
with a particular customer, or significantly altering the scope of the business; rather, the employer
performed the same work with fewer employees, and its decision was “almost exclusively ‘an
aspect of the relationship’ between employer and employee” amenable to bargaining).
JD–79–19
22
represented employees in question had been employed. Here Respondent not
only continues to service its restaurants, but it continues to supply them with
prepared shrimp.
Bob’s Big Boy, 264 NLRB at 1370–1371 & ft. 12 (footnote citation omitted).5
In our case, DuPont’s contracting out does not even rise to the level of the shrimp
processing in Bob’s Big Boy, which, at least, altered a component of the foodstuffs product
prepared and provided to the employer’s customers. It does not rise to the level of the change in
distribution of products in Mi Pueblo Foods, which affected the delivery of products. It does not 10
rise even to the level of the job consolidations and reassignments in Holmes & Narver, that
changed the work demands on motor pool mechanics. DuPont’s subcontracting of the duties of
emergency services leaves the production, scope, and function of the business undisturbed.
That the Spruance plant’s emergency services work is not a primary production function, 15
and that the emergency services continues to be performed onsite by a contractor, leaves the
Respondent with only inapposite cases to cite. For instance, the Respondent cites Arrow
Automotive Industries v. NLRB, 653 F.2d 223 (4th Cir. 1988). However, that case involved an
auto/truck parts remanufacturer and distributer that closed its Hudson, Massachusetts plant. The
work went to its South Carolina facility. The court found that such a plant closure involved a 20
change in the scope and direction of the enterprise, and the plant closure decision was not
required to be bargained. But DuPont has not closed the Spruance plant—or any part of it. It’s
emergency services work has been re-designated to a contractor working onsite, the work has not
been relocated.
25
DuPont also cites Gar Wood-Detroit Truck Equipment, 274 NLRB 113 (1985), but that
case involved an employer’s decision—necessitated by an existential need to “reduce its
overhead costs across-the-board so as to be able to remain in business”—to exit the business of
mounting and servicing equipment on trucks leaving only its business of selling truck parts. The
employer in Gar Wood-Detroit subcontracted the mounting and servicing work, leased its facilities 30
and equipment to the new subcontractors who began paying a portion of the employer’s rent and
utilities. The employer retained no right of control over the subcontractor’s employees. The
Board relied on evidence showing that this decision was made as part of a decision “to get out of
the garage business” and operate as a “parts distribution” business,” which the Board found to be
a fundamental shift in the nature and direction of the employer’s business. In sharp contrast, 35
DuPont has not altered its Spruance plant business at all—its operations and production remain
unchanged. Indeed, it has not even gotten out of the emergency services—as the FDM
employees continue to report through their chain of command to Lukhard, DuPont has plans to
replace the FDM shift commanders with DuPont exempt employees, and FDM does not rent or
compensate DuPont for use of DuPont’s equipment or land. DuPont has not gone out of the 40
emergency services business. Rather, it has hired a contractor to provide employees to perform
the emergency services previously performed by the DuPont employees.
DuPont also contends that its motives for the subcontracting exempt the decision from
collective-bargaining obligations under the Act. However, labor costs, specifically overtime and 45
training labor costs, were manifestly a factor in the decision to contract out. As noted, above, the
actual decision making process of upper management about the subcontracting is opaque. What
JD–79–19
23
we have demonstrates that the anticipated savings in overtime and training costs were significant
factors, repeatedly emphasized in the explanations for the contracting out.13
At the hearing, the substantial evidence of labor cost motivation in the decision to
subcontract was met with the insistence of the Respondent’s witnesses that cost savings had 5
nothing to do with the matter.
Unfortunately, it appears, as the General Counsel points out, that once the Union filed its
unfair labor practice in June 2018, the Respondent began to omit the cost savings rationale from
its discussions of the contracting out. For instance, Lukhard’s post-implementation October 24, 10
2018 power point—very unlike the confidential March and April 2018 power points, which each
devoted a whole slide to showing the anticipated $1 million annual savings—omitted any
reference to cost savings. Lukhard’s October 2018 presentation was for public—or perhaps,
NLRB—consumption. Behind the scenes, the costs savings to be netted from the contracting of
the ERT remained important to DuPont. Yanoschak’s August 10, 2018 email was devoted to the 15
subject—projecting annual overtime and training cost savings of over $700,000, but warning that
the matter should be kept quiet:
Please find attached the spreadsheet containing the savings associated with the
change to contract Emergency Services. Please maintain the confidentiality of this 20
document and do not forward or provide to anyone other than the person that
needs to calculate IRR. These are ongoing annual savings and not just 1-time.14
Why the secrecy, at this late date less than three weeks before implementation? A clue is
found in Sparks’ August 20 email to other top managers, part of a group email crafting the 25
wording of a bulletin about the subcontracting to be distributed to the work force. In the email
Sparks expressed concern, endorsed by Yanoschak, that the bulletin should not mention
“reduced costs of service” for fear of “creating issues” for the “current ULP on this issue.”15
13See, March 15, and April 24, power point demonstrations highlighting the anticipated $1
million annual savings in overtime and training costs; June 18 email from Yanoschak “$1.7MM
overtime costs (staffing and confined space support); Training Costs $450M. Cost of the contract
services $ 1.1MM ($1MM Savings annually)”; “confidential” August 10 email with chart showing
“ongoing annual savings and not just 1-time” savings associated with the contracting; April 27,
Tackett approval of “cost sourcing variance request” citing as justification for subcontracting that
the “Site will recognize a significant cost savings in overtime as a result of this effort”; June 14
email citing “Reduced cost of services” as benefit and more specifically identifying “Significant
reduction in overtime, training, and equipment and apparatus cost.”
14IRR is a common accounting abbreviation for internal rate of return, a metric used to
estimate profitability.
15Sparks wrote:
I am still on the fence on including ‘reduced cost of service.’ I am thinking that
once we have the final version, I would like to run this by our legal team as there is
a current ULP on this issue and we want to make sure we are not creating issues.
The version of the bulletin that made it into the record (see, GC Exh. 18 at 4), which, Yanoschak
wrote, reflected “Mary Anne[‘s] . . . updates to my wording that I like,” did not reference “reduced
cost of service” or make any reference to the cost savings that Yanoschak was predicting.
JD–79–19
24
At the hearing, the Respondent’s witnesses only added to this odor of disingenuity.
Holmes testified that when he announced the subcontracting to the Union he had no knowledge
of any cost savings associated with the subcontracting, and, therefore could not have addressed
the issue of costs. But this was shown to be, and is found to be, unbelievable. In the days and
also months before the meeting with the unions, Holmes was privy to DuPont documents that 5
highlighted the anticipated overtime and training cost savings of a million dollars annually to be
gleaned from the subcontracting. Meenach engaged in the same testimonial evasion, going so
far as to nonresponsively volunteer, in response to a question about what Irvin said at the June 19
meeting, that “So we made it clear that it wasn’t about cost. It was about making sure we had the
right staffing levels and the right safety at the plant.” This is all very suspect in the context of a 10
record where DuPont appears to be purposefully trying to shape its unfair labor practice defense
by minimizing or eliminating a labor-cost rationale for the subcontracting decision.
In short, the plethora of evidence demonstrating the importance of the overtime and
training cost savings to the contracting out decision is only heightened by DuPont’s effort to hide it15
and deny it. And DuPont’s motive seems clear. DuPont undoubtedly understands that the
Supreme Court has “emphasized that a desire to reduce labor costs [is] considered a matter
‘peculiarly suitable for resolution with the collective bargaining framework.’” First National
Maintenance, 452 U.S. at 680, quoting Fibreboard, 379 U.S. at 404.16
20
In addition to the direct overtime and training cost savings that animated the Respondent’s
subcontracting decision, it is notable that Lukhard’s lengthy testimony about his interest in the
contracting out—intended by the Respondent to act as a stand in for DuPont upper
management’s decision making process—also supports the finding that the contacting out of the
ERT was a mandatory subject of bargaining.25
Thus, Lukhard emphasized in his testimony that the subcontracting was motivated by
problems DuPont encountered in finding sufficient able unit employees necessary to staff and
lead the emergency services. The Board has squarely held that this rationale for subcontracting
places the subcontracting decision within the ambit of the duty to bargain. Sociedad Espanola de 30
Auxilio Mutuo y Beneficia de P.R., 342 NLRB 458, 468–469 (2004) (employer claim that
subcontracting “prompted by its inability to recruit and hire the X-ray technicians and respiratory
therapists needed to meet its staffing requirements” demonstrates that decision was mandatory
subject of bargaining), enfd. 414 F.3d 158 (1st Cir. 2005); Furniture Rentors of America, 311
16I note that the evident role of overtime labor costs does not make applicable the burden-
shifting test articulated in Dubuque Packing Co., 303 NLRB 386 (1991), enfd. in relevant part, 1
F.3d 24 (D.C. Cir. 1993). Given that the unilateral work change at issue does not involve
relocated work, the General Counsel and the Respondent’s arguments about how the dispute
would be resolved under Dubuque Packing are inapposite. The Board has never applied
Dubuque Packing to decisions, such as that here, that manifestly are not work relocation
decisions. Rather, the Board “has made clear, however, that that particular burden-shifting test
was devised for determining the nature of relocation decisions, and we did not purport to extend it
to other types of management decisions that affect employees.” Torrington, 307 NLRB 809, 810
(1992), citing Dubuque Packing, 303 NLRB 386, 388–390 (1991). See also, Somerset Valley
Rehabilitation & Nursing Center, 364 NLRB No. 43, slip op. at 14 & 4 (2016) (judge rejects
application of Dubuque Packing analysis where “there is no evidence that bargaining unit work
was geographically relocated as in Dubuque Packing”; Board holds that “if defenses the
Respondent raises were cognizable here, we affirm the judge’s reasons for rejecting them on the
merits”); Power, Inc., 311 NLRB 599, 599 (1993) (“the Dubuque test does not apply in cases
factually similar to Fibreboard”), enfd. 40 F3d 409 (D.C. Cir. 1994).
JD–79–19
25
NLRB 749, 750 (1993) (subcontracting motivated by dissatisfaction with employees’ conduct and
performance is bargainable), enft. denied in relevant part, 36 F.3d 1240 (3d Cir. 1994).
Indeed, these types of concerns are themselves, indirect labor costs covered by the duty
to bargain. See generally Dubuque Packing Co., 303 NLRB 386, 391 (1991) (labor costs include 5
both direct and indirect costs of labor), enfd. 1 F.3d 24 (D.C. Cir. 1993), cert. denied 511 U.S.
1138 (1994). See also Electrical Workers Local 11, 217 NLRB 397, 400 (1975) (labor costs
included man-hours lost training employees and familiarizing them with employer's equipment).
Lukhard also stressed the dangerous mix of chemicals and processes at play in the plant 10
as a basis for his desire to subcontract, a motive that the Respondent characterizes as a safety
and environmental concern. However, this motive, which—as it is completely absent from any
contemporaneous or even post-implementation documentation touting the benefits or rationale for
the contracting out—appears to be contrived for litigation. At the hearing, Lukhard was led
through a lengthy but rote account of the many dangerous chemicals onsite; for each chemical he15
endorsed a question posed by counsel as to whether that hazard “inform[ed]” or “influenc[ed]”
“your decision to outsource the ERT.” (See, Tr. at 367, 372, 371, 379, 392, 393, 398, 399, 407).
The Respondent urges its safety concerns as a predicate for its claim that they render the
decision to subcontract the ERT nonbargainable in accord with Oklahoma Fixture, 314 NLRB 958 20
(1994). That case, the Board found, “present[ed] the unusual situation” where the credited
testimony of the employer’s vice-president who made the subcontracting decision established that
the decision “was based on core entrepreneurial concerns outside the scope of mandatory
bargaining.” Id. at 960. More specifically, in Oklahoma Fixture, an employer that manufactured
display cases for department stores—primarily for one customer, Dillard’s—brought electrical25
wiring work inhouse after contracting it out for five years. One year later, the credited testimony of
the employer’s vice-president Cavins was that he decided once again to subcontract the electrical
work because he was concerned about legal liability, the risk of losing Dillard’s as a customer and
of losing virtually all of the Respondent’s revenue in the event of electrical damage, that he did not
feel competent to oversee the wiring work, and that he wanted a subcontractor who was insured 30
to do the work. Id. at 958, 960. Relying on the fact that “[t]he judge credited the testimony of Vice
President Mark Cavins that he was genuinely concerned about legal liability and the risk of losing
Dillard’s business in the event of electrical damage caused by the Respondent’s employees,” and
recognizing that that “’[l]abor costs,’ even in the broad sense of the term employed by the Board,
were not a factor in the decision,” the Board found that the employer’s subcontracting “involved 35
considerations of corporate strategy fundamental to preservation of the enterprise,” and therefore
was outside the scope of the duty to bargain.
DuPont’s decision to contract out the ERT here cannot be molded into a “core
entrepreneurial” endeavor that was part of a “corporate strategy fundamental to preservation of 40
the enterprise,” as was the case in Oklahoma Fixture.
For one thing, and dispositively, unlike the decision in Oklahoma Fixture, the decision to
subcontract here did involve labor costs, as discussed above, both in terms of direct overtime cost
savings and indirect costs of staffing and training. 45
For another, unlike in Oklahoma Fixture, I do not credit the claim that safety concerns
“fundamental to the preservation of the enterprise” motivated this subcontracting. In this regard, I
do not put much stock on Lukhard’s rote and led testimony on this score. The hazards are real,
but the suggestion at trial a year later that it contributed to the decision to contract out the ERT 50
(vaguely described as “informing” or “influencing” the decision) is self-serving, uncorroborated,
JD–79–19
26
and unverified. It lacks credibility, as safety is unmentioned in any of the documentation about the
decision created by the Respondent before or after the subcontracting.17 But even assuming,
arguendo, safety was an honest concern of Lukhard’s, there is zero evidence that he presented or
expressed this concern to others above him or that it figured in any way into DuPont’s decision to
subcontract. There was absolutely nothing new about the hazards and chemicals at the 5
Spruance plant. They had all been there as long as anyone who testified could remember. If the
safety of the employee ERT was a concern to Lukhard, who arrived in July 2017, there is no
evidence that anyone else at DuPont, including the more senior managers to whom Lukhard
reported and who were involved in the decision to subcontract the ERT, shared the view that the
ERT program compromised safety. The credibility of the claim is not enhanced by the fact that its 10
acceptance requires accepting that safety concerns that had comfortably existed with an
employee ERT for decades and decades, suddenly are perceived by DuPont as an existential
threat to the enterprise. There is simply no evidence to support this fantastic claim, which is
wholly undocumented as a concern by DuPont at the time the decision was being made.
15
Finally, even assuming, wrongly and without credible evidence that safety was one of the
concerns that prompted the subcontracting, this negates not at all the amply documented
concerns with overtime costs and staffing issues that motivated the subcontracting. Those
concerns are bargainable reasons for the subcontracting and the (late) addition of professed
safety concerns does not retroactively render the decision nonbargainable. 20
For all of these reasons, Oklahoma Fixture is inapposite to the situation at bar here.
DuPont’s remaining contention is that the decision to contract out the emergency services
was part of a decision to make capital expenditures or liquidate assets. This does not follow from 25
the evidence. While the Respondent makes much of Lukhard’s claims that DuPont is investing in
infrastructure related to emergency services over the next five or ten years—wholly
undocumented claims, I note—none of it is linked in any way to the decision to subcontract the
emergency services. Thus, upgraded communications systems, an upgraded fire alarm system,
an upgraded sprinkler system, all of this vaguely discussed as being completed in four years, or 30
five years, or more, are the type of improvements that could be made with or without contracting
out of the ERT. There is no evidence that any assets are being sold to the contractor or
otherwise given up. Notably, and significantly, none of DuPont’s internal or external
communications about the subcontracting decision associate or even mention in any way the
alleged capital expenditures and infrastructure improvements. In this regard, apropos is the 35
Board’s explanation for rejecting the employer’s “capital expenditure” defense to the duty to
bargain subcontracting in Bob’s Big Boy Family Restaurants, 264 NLRB at 1371:
We note that, when the subcontracting arrangement became operative,
Respondent was not required to engage in any substantial capital restructuring or 40
investment. . . . In short, no immediate restructuring of capital was necessitated by
the decision to subcontract and the subsequent capital transactions, while not de
minimis, occurred at a leisurely pace with Respondent retaining possession of the
basic facility and certain of the equipment used in shrimp processing. Accordingly,
the capital transactions undertaken pursuant to the decision to subcontract are not, 45
17Such “post-hoc” justifications are typically found to be pretextual. See, e.g., Approved
Electric Corp., 356 NLRB 238, 239 (2010) (“The Board commonly recognizes such shifting
rationales as evidence that an employer’s proffered reasons for discharging an employee are
pretextual”) (citing City Stationery, Inc., 340 NLRB 523, 526 (2003)).
JD–79–19
27
in our view, substantial enough to remove the decision from the scope of
Respondent's mandatory bargaining obligation.
This is even more true here, where the vague assertions of capital expenditures are not
driven or linked in any demonstrated way by the subcontracting or associated with it.185
After decades of having employees perform the emergency services work, DuPont
decided it wanted to hire a contractor to perform the same work. It need not be said, but to avoid
any risk of misreading I will say it: nothing in this record suggests that DuPont’s desire to contract
out the ERT was borne of illegal motive; nothing in this record shows that DuPont was wrong to 10
want to contract out the ERT. Indeed, it may well be that the Respondent’s desire to contract out
the work makes eminent sense for the operation and, perhaps, even for the employees. And it
may be that after unsuccessful but good-faith bargaining, the Respondent would have been able
to implement the subcontracting. But the subcontracting decision is grist that the Act requires the
Union be given the opportunity to put through the mill of the bargaining process.15
2. Contractual and waiver defenses
DuPont contends (R. Br. at 29–30) that it was excused from the duty to bargain over the
emergency services subcontracting based on a “contract coverage” defense. In MV 20
Transportation, Inc., 368 NLRB No. 66 (2019) the Board adopted the contract coverage standard
to analyze contractual defenses to refusal to bargain allegations. Under this standard,
the Board will examine the plain language of the collective-bargaining agreement
to determine whether action taken by an employer was within the compass or 25
scope of contractual language granting the employer the right to act unilaterally. . .
. In other words, the Board will honor the parties’ agreement, and in each case, it
will be governed by the plain terms of the agreement.
MV Transportation, supra at slip op. 2.30
Essentially, under the contract coverage standard, “where . . . the agreement will have
authorized the employer to make the disputed change unilaterally . . . the employer will not have
violated Section 8(a)5).” MV Transportation, supra at 11.
35
“On the other hand,” the Board explained in MV Transportation:
if the agreement does not cover the employer’s disputed act, and that act has
materially, substantially and significantly changed a term or condition of
employment constituting a mandatory subject of bargaining, the employer will have 40
violated Section 8(a)(5) and (1) unless it demonstrates that the union clearly and
unmistakably waived its right to bargain over the change or that its unilateral action
was privileged for some other reason. Thus, under the contract coverage test we
adopt today, the Board will first review the plain language of the parties’ collective-
18I note but dismiss the Respondent’s further contention that the subcontracting of the ERT
work was linked or “attributable to” a significant corporate restructuring that DuPont effectuated
worldwide in the spring of 2019 (R. Br. at 15, ¶50; R. Exh. 50). There is zero evidence that the
contracting out of ERT in 2018, was in any manner caused by, attributable to, or related to this
world-wide corporate restructuring. Whatever changes were roiling the corporate and financial
waters at DuPont worldwide, at Spruance the operations were—by all evidence—unaffected.
JD–79–19
28
bargaining agreement, applying ordinary principles of contract interpretation, and
then, if it is determined that the disputed act does not come within the compass or
scope of a contract provision that grants the employer the right to act unilaterally,
the analysis is one of waiver.
5
MV Transportation, supra at slip op. 2 (footnotes omitted)
Given the labor agreements between the ARWI and DuPont (both the 2015 Agreement
and the 2018 Agreement), the contract-coverage defense is meritless in this case. Indeed, in its
brief, DuPont avoids reference to a provision of the 2018 agreement that specifically treats with 10
limitations on its right to contract out.
The provisions that DuPont cites in support of its “contract coverage” defense are so far
removed from the dispute at hand that DuPont has trouble explaining their application. DuPont
points to—and points only to—two sections of the labor agreements in support of its argument; 15
two sections from the “Miscellaneous” article of the agreements (sections 2 & 9 of article IX of the
2015 Agreement, restated as sections 2 and 8 of article IX of the 2018 Agreement). These
provisions state:
Section 2. Recognizing the technical nature of the COMPANY'S20
Operations, the UNION acknowledges the COMPANY'S right to employ
and retain individuals with technical training in such capacity as
Management deems desirable. However, any such employee (student
operator, etc.) being trained in the Plant areas shall not prevent
an employee not technically trained from gaining a promotion in such25
capacity as he normally would receive under Article VIII. Such technically
trained employee shall take his normal seniority position if he is
removed from his special position.
* * * * * * 30
Section 9 [Section 8 in the 2018 Agreement]. Supervision will not perform
production or maintenance work ordinarily done by employees covered by
this Agreement, except they may perform such work in the interest of safety
or in the preservation of COMPANY property or in the performance of duties
such as Instruction, training, work during emergencies or for the purpose of 35
investigation inspection, experimentation and obtaining information when
production or equipment difficulties are encountered.
As to Section 2, DuPont does not even venture a claim as to what that has to do with a
purported unilateral right to contract out the ERT. As to Sections 8 & 9, the contracting out at 40
issue does not involve the use of supervisors in place of unit employees, so the relevance of the
provision is not apparent, and, in any event, DuPont’s claim that its contracting out of the ERT
was undertaken in the interest of safety, and as an emergency, and thus permitted by this section,
has been rejected as a contrivance.19
19Contrary to the Respondent’s suggestion on brief, there is zero evidence that subcontracting
of the ERT constituted an emergency—indeed, one puzzles over how a subcontracting decision
conceived of in March and April, announced in June, and implemented in September, could be
characterized as an emergency. As referenced above, its claim that safety motivated the
subcontract is belied by the complete absence of contemporaneous reference to that motivation
at the time of the planning, announcement, or implementation of the subcontracting.
JD–79–19
29
These contractual provisions cited by DuPont do not even remotely suggest that the
unilateral contracting out of the ERT was “with in the compass or scope of contractual language
granting the employer the right to act unilaterally.” MV Transportation, supra.
5
Most tellingly with regard to its “contract-coverage” defense, DuPont ignores—it does not
mention—that the 2018 Agreement—which was effective September 1, the day of the contracting
out of the emergency services, contains an Addendum E (“Contract of Work (COW) Procedure)
that establishes a bargaining process for the contracting out of work. This provision states that:
10
Since all contracted work requires prior bargaining, this procedure describes the
process to engage appropriate site resources to review these jobs and approve the
use contracted resources.
Appendix A to Addendum E lists jobs that “have been blanket bargained with the Unions 15
and do not have to go through the Contracting of Work process,” but emergency services (or
anything resembling it) is not listed.
One of the stated goals of the Board in adopting the “contract-coverage” standard was
“ensuring that all provisions of the parties’ agreement are given effect.” MV Transportation, supra 20
at slip op. 9 (Board’s emphasis). It is not lost on me that DuPont’s contention that it has a
contractually-based right to unilaterally contract the ERT fails to treat with—or even direct the
Board’s attention to—a provision of the current agreement—in effect from the day the
subcontracting was implemented—that appears to affirmatively refute its contractual defense.
25
The Respondent also argues that the Union has waived the right to bargain over
contracting out of the emergency services work. As set forth in MV Transportation,
if the contract coverage standard is not met, the Board will continue to apply its
traditional waiver analysis to determine whether some combination of contractual 30
language, bargaining history, and past practice establishes that the union waived
its right to bargain regarding a challenged unilateral change.
MV Transportation, supra slip op. at 12.
35
Thus, the Board’s traditional “clear and unmistakable” waiver standard remains applicable
where the contract coverage defense fails. Under that standard, a waiver of statutory bargaining
rights is not lightly inferred and must be “clear and unmistakable.” See Metropolitan Edison v.
NLRB, 460 U.S. 693, 708 (1983); Provena St. Joseph Medical Center, 350 NLRB 808 (2007). The
party asserting waiver must establish that the parties “unequivocally and specifically express[ed] 40
their mutual intention to permit unilateral employer action with respect to a particular employment
term, notwithstanding the statutory duty to bargain that would otherwise apply.” Provena St.
Joseph Medical Center, 350 NLRB at 811; Johnson-Bateman Co., 295 NLRB 180, 189 (1989) (In
order to find a waiver based on contractual language, that language must be “sufficiently
specific”). Moreover, in order to rely on bargaining history for a waiver, the evidence must show 45
that the specific issue was “fully discussed and consciously explored during negotiations” and that
“the union . . . consciously yielded or clearly and unmistakably waived its interest in the matter.”
Johnson-Bateman, supra at 185. As the Board explained in Provena, supra at 813:
The waiver standard . . . effectively requires the parties to focus on particular 50
subjects over which the employer seeks the right to act unilaterally. Such a narrow
JD–79–19
30
focus has two clear benefits. First, it encourages the parties to bargain only over
subjects of importance at the time and to leave other subjects to future bargaining.
Second, if a waiver is won--in clear and unmistakable language--the employer's
right to take future unilateral action should be apparent to all concerned.
5
As referenced above, the labor agreements offer nothing that aids DuPont in meeting the
clear and unequivocal waiver standard. Nothing shows a mutual intention to permit unilateral
employer action with respect to subcontracting of the ERT program. Moreover, the bargaining
history demonstrates the opposite of a bargaining waiver. The bargaining history shows that time
and time again, going back over a decade, the parties bargained over and agreed to changes that 10
DuPont (or the Union) wanted to make regarding the ERT program. There is no waiver on this
record.20
In sum, for all of these reasons, the Respondent violated Section 8(a)(5) of the Act by
failing and refusing, since on or about June 19, 2018, to bargain over the decision to subcontract 15
the emergency services work performed by unit employees at the Spruance plant.21
20
20DuPont suggests (R. Br. at 20 & 31) that a waiver of the right to bargain the subcontracting
of emergency services can be found in the Union’s July 2017 failure to request bargaining when
informed of DuPont’s intention to sell the Spruance plant’s utilities operations to Veolia. The
singular sale of these operations—for which, by the way, DuPont continued to provide emergency
services—was far too dissimilar to provide a basis for a clear and unmistakable waiver of the duty
to bargain over the subcontracting of ERT. Owens-Corning Fiberglas, 282 NLRB 609, 613 (1987)
(no waiver because “the historical changes were not the same as this one”); Provena, 350 NLRB
at 815 & fn. 35. Even more unusual is the claim (R. Br. at 31) that the Union waived the right to
bargain over the subcontracting by not raising the issue in negotiations for the 2018 Agreement.
Putting aside that, in fact, Addendum E to the 2018 Agreement appears to restrict unilateral
contracting out, the negotiations for the 2018 Agreement occurred at the very time that DuPont
was refusing to bargain over the subcontracting decision. DuPont cannot rely on its affirmative
(and unlawful) refusal to bargain to establish a simultaneous waiver by the Union.

21The complaint alleges a violation of the Act since June 18, 2018. However, as set forth
above, the June 18 meeting between DuPont and the union presidents was brief and the record
does not show a refusal to bargain. Rather, when he heard about the subcontracting decision,
ARWI President Palmore told Holmes that he wanted DuPont to meet with the ARWI executive
committee. The record shows Palmore asked at the meeting if DuPont was “going to bargain it”
but the record does not show what the answer was. DuPont promptly scheduled a meeting the
next day, June 19, with the ARWI executive committee, and at that meeting made it clear that
DuPont was refusing to bargain over the subcontracting decision. Accordingly, I find a violation
beginning June 19, 2018. I also note that a violation of Section 8(a)(5) is a derivative violation of
Section 8(a)(1). Tennessee Coach Co., 115 NLRB 677, 679 (1956), enfd. 237 F.2d 907 (6th Cir.
1956). See, ABF Freight System, 325 NLRB 546 fn. 3 (1998). Hence, I will find a Section 8(a)(1)
violation, as alleged.
JD–79–19
31
3. Effects bargaining
As referenced above, the complaint generally alleges (GC Exh. 1(c) at ¶¶ 6 &10) that the
Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain over the
emergency services work. As discussed above, as I have found, the Respondent unlawfully 5
refused to bargain over the decision to subcontract the emergency services work. Apart from its
duty to bargain over the decision to subcontract the emergency services, the duty to bargain
includes the obligation to bargain over the effects of that decision. First National Maintenance,
supra at 681.
10
The Respondent does not dispute that it had an obligation to bargain the effects of its
decision. Rather, it contends that it repeatedly offered and tried to do so, but that the Union
refused, thereby waiving the right to bargain effects.
The problem with the Respondent’s argument is that its offer to bargain the effects was at 15
all times made in the context of its unlawful refusal to bargain over the subcontracting decision.
“Where, as here, a union is entitled to bargain over both the decision and its effects, the employer
must provide the union a prior or contemporaneous opportunity to bargain over the former to fully
satisfy its obligation to bargain over the latter.” International Game Technology, 366 NLRB No.
170, slip op. at 1 fn. 3 & 10 (2018). See Solutia, Inc., 357 NLRB 58, 65 (2011) (“Respondent's 20
limited offer to bargain only over the latter [the effects] without the former [the decision] was
insufficient to satisfy its obligations as to either”) and cases cited therein; enfd. 699 F.3d 50 (1st
Cir. 2012); Dan Dee West Virginia Corp., 180 NLRB 534, 539 (1970) (“It may be true that the
Union avoided bargaining about the effects of the change, but bargaining on that subject was
premature until the matter of the change was resolved or an impasse reached on it.”)25
The duty to bargain over the emergency services included the duty to bargain over the
decision and the effects of the decision to subcontract. Given the Respondent’s unlawful failure
to bargain over the subcontracting decision, the Respondent failed to satisfy its duty to bargain
over the effects of that decision.30
B. The unilateral implementation of the emergency services subcontracting
The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by,
about September 1, 2018, unilaterally subcontracting emergency services work performed by unit 35
employees. (GC Exh. 1 at ¶7.)
In NLRB v. Katz, 369 U.S. 736 (1962), the Supreme Court held that a unionized
employer’s unilateral change in employment terms without providing the union notice and an
opportunity to bargain is a violation of Section 8(a)(5). 40
Although sharing the same premise—in that the unilateral change must be regarding a
mandatory subject of bargaining—this duty to refrain from unilateral action is “[s]eparate from the
duty to bargain upon request.” Raytheon Network Centric Systems, 365 NLRB No. 161, slip op.
at 4 (2017).45
Here, for the reasons described above, DuPont had a duty to provide notice and an
opportunity to bargain over the decision to subcontract the emergency services. It refused to
bargain, and, therefore, the September 1, 2018 unilateral implementation of the subcontracting
was a violation of Section 8(a)(5) and, derivatively, 8(a)(1) of the Act.50
JD–79–19
32
CONCLUSIONS OF LAW
1. The Respondent DuPont Specialty Products USA, LLC, as a successor to E. I. du Pont de 5
Nemours and Company (DuPont) is an employer engaged in commerce within the meaning of
Section 2(2), and (6), of the Act.

2. The Charging Party Ampthill Rayon Workers, Inc., Local 992, International Brotherhood of
DuPont Workers (Union or ARWI) is a labor organization within the meaning of Section 2(5) of
the Act. 10
3. The ARWI is the designated collective-bargaining representative of the following appropriate
bargaining unit of the Respondent’s employees at the Spruance plant, Richmond, Virginia:
All production, maintenance, service and Plant technical hourly wage roll 15
employees at the Plant included within the unit appropriate for collective bargaining
purposes certified in an order of the National Labor Relations Board in cases Nos.
5-R-2724, 5-R-2773, 5-R-2791 bearing date of January 31, 1947, but excluding all
employees classified as instructors, instructresses, security officers, United Service
Employees, employees when working as relief supervisors and supervisors-in-20
training, and all supervisory employees set forth ln said cases with the authority to
hire, promote, discharge, discipline or otherwise effect changes in the status of
employees or effectively recommend such action.
4. The Respondent violated Section 8(a)(5) and (1) of the Act, since on or about June 19, 25
2018, by failing and refusing to bargain collectively with the Union over the decision to
subcontract the Spruance plant emergency services work, and over the effects of that
decision.
5. The Respondent violated Section 8(a)(5) and (1) of the Act, since on or about 30
September 1, 2018, by subcontracting the Spruance plant emergency services work
without affording the Union an opportunity to bargain with respect to this conduct.
6. The unfair labor practices committed by the Respondent affect commerce within the meaning
of Section 2(6) and (7) of the Act.35
REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. 40
The Respondent shall, upon request, bargain with the Union over the decision to
subcontract the Spruance plant emergency services work and over the effects of that decision.
The Respondent shall, before implementing any changes in wages, hours, or other terms 45
and conditions of employment of unit employees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of the unit employees.
JD–79–19
33
The Respondent shall restore the status quo ante by transferring the work the Respondent
subcontracted back to unit employees. “It is well settled that restoration of the status quo is the
appropriate remedy for decision violations, absent a showing that it would be unduly
burdensome.” Rigid Pak Corp., 366 NLRB No. 137, slip op. at 5 (2018) (see also cases cited
therein). At the compliance stage of the proceeding, the Respondent will be permitted to argue 5
and present supporting evidence that restoring the status quo ante would be unduly burdensome.
San Luis Trucking, Inc., 352 NLRB 211, 211 fn. 5 (2008); Allied General Services, 329 NLRB 568,
569 (1999); Lear Siegler, Inc., 295 NLRB 857, 861–862 (1989).22
The Respondent shall make unit employees whole for any loss of earnings and other 10
benefits suffered as a result of the unlawful subcontracting, in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizon, 283 NLRB 1173 (1987) and compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB 101 (2014), the Respondent shall compensate the employees 15
for the adverse tax consequences, if any, of receiving lump sum backpay awards, and, in
accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent shall,
within 21 days of the date the amount of backpay is fixed either by agreement or Board order, file
with the Regional Director for Region 5 a report allocating backpay to the appropriate calendar
year for each of the affected employees. The Regional Director will then assume responsibility for 20
transmission of the report to the Social Security Administration at the appropriate time and in the
appropriate manner.
The Respondent shall post an appropriate informational notice, as described in the
attached appendix. This notice shall be posted in the Respondent’s facility wherever the notices 25
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. In the
event that, during the pendency of these proceedings, the Respondent has gone out of business 30
or closed any facility involved in these proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current employees and former employees employed
by the Respondent at any time since June 19, 2018. When the notice is issued to the
Respondent, it shall sign it or otherwise notify Region 5 of the Board what action it will take with
respect to this decision 35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended23
22No showing of undue burden was made at the unfair labor practice hearing. There was
some suggestion at the hearing (Tr. 363) and on brief (R. Br. at 16) that a return to the status quo
ante would require DuPont to undo its January 2019 agreement to continue to provide Veolia, its
Spruance plant utilities operator, with emergency services. But this does not follow. DuPont’s
agreement with Veolia (R. Exh. 53) requires DuPont—not FDM or another contractor—to provide
services to the utilities operation. These emergency services were provided by DuPont
employees before the subcontracting and can be resumed as part of the return to the status quo.
23If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD–79–19
34
ORDER
DuPont Specialty Products USA, LLC, as a successor to E. I. du Pont de Nemours and
Company, Richmond, Virginia, its officers, agents, successors, and assigns, shall
5
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the Ampthill Rayon Workers, Inc.,
Local 992, International Brotherhood of DuPont Workers (Union or ARWI) over
the decision to subcontract the Spruance plant emergency services work and over 10
the effects of that decision.
(b) Subcontracting the Spruance plant emergency services work without first notifying
the Union and giving it an opportunity to bargain over the subcontracting decision
and over the effects of that decision. 15
(c) In any other 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 effectuate the policies of the Act.20
(a) On request, bargain with the Union over the decision to subcontract the Spruance
plant emergency services work and the effects of that decision, for the following
appropriate unit:
25
All production, maintenance, service and Plant technical hourly
wage roll employees at the Plant included within the unit appropriate
for collective bargaining purposes certified in an order of the
National Labor Relations Board in cases Nos. 5-R-2724, 5-R-2773,
5-R-2791 bearing date of January 31, 1947, but excluding all 30
employees classified as instructors, instructresses, security officers,
United Service Employees, employees when working as relief
supervisors and supervisors-in-training, and all supervisory
employees set forth ln said cases with the authority to hire, promote,
discharge, discipline or otherwise effect changes in the status of 35
employees or effectively recommend such action.
(b) Before implementing any changes in wages, hours, or other terms and conditions
of employment of unit employees, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of employees in the unit 40
described above.
(c) Restore the status quo ante by transferring the emergency services work the
Respondent subcontracted back to unit employees.24
45
24At the compliance stage of the proceeding, the Respondent will be permitted to argue and
present supporting evidence that restoring the status quo ante would be unduly burdensome.
San Luis Trucking, Inc., 352 NLRB 211, 211 fn. 5 (2008); Allied General Services, 329 NLRB 568,
569 (1999); Lear Siegler, Inc., 295 NLRB 857, 861–862 (1989).
JD–79–19
35
(d) Make the unit employees whole for any loss of earnings and other benefits
suffered as a result of the subcontracting of the emergency services work, in the
manner described in the remedy section of this decision.
(e) Compensate unit employees affected by the subcontracting of the emergency 5
services work for the adverse tax consequences, if any, of receiving lump-sum
backpay awards and file with the Regional Director for Region 5, within 21 days of
the date the amount of back pay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate calendar years for each
employee. 10
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including 15
an electronic copy of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its headquarters at the
Spruance plant copies of the attached notice marked “Appendix.”25 Copies 20
of the notice, on forms provided by the Regional Director for Region 5, after
being signed by the Respondent's authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, notices 25
shall be distributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during 30
the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the
Respondent at any time since June 19, 2018. 35
(h) Within 21 days after service by the Region, file with the Regional Director
for Region 5 a sworn certification of a responsible official on a form
provided by the Region attesting to the steps that the Respondent has
taken to comply.40
Dated, Washington, D.C. October 11, 2019
David I. Goldman
U.S. Administrative Law Judge45
25If 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 United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
4c.,,t CIL
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 violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail and refuse to bargain collectively with the Union, the Ampthill Rayon Workers,
Inc., Local 992, International Brotherhood of DuPont Workers, over our decision to subcontract
the Spruance plant emergency services work or over the effects of that decision.
WE WILL NOT subcontract the Spruance plant emergency services work without first notifying
the Union and giving it an opportunity to bargain over the decision and over the effects of that
decision.

WE WILL NOT in any manner interfere with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, upon request, bargain with the Union over the decision to subcontract the Spruance
plant emergency services work and the effects of that decision, for the following unit:
All production, maintenance, service and Plant technical hourly wage roll
employees at the Plant included within the unit appropriate for collective
bargaining purposes certified in an order of the National Labor Relations Board in
cases Nos. 5-R-2724, 5-R-2773, 5-R-2791 bearing date of January 31, 1947, but
excluding all employees classified as instructors, instructresses, security officers,
United Service Employees, employees when working as relief supervisors and
supervisors-in-training, and all supervisory employees set forth ln said cases with
the authority to hire, promote, discharge, discipline or otherwise effect changes in
the status of employees or effectively recommend such action.
JD–79–19
WE WILL before implementing any changes in your wages, hours, or other terms and conditions
of employment, notify and, on request, bargain with the Union as the exclusive collective-
bargaining representative of employees in the unit described above.
WE WILL restore the status quo ante by transferring the emergency services work that we
subcontracted back to unit employees.
WE WILL make unit employees whole for any loss of earnings and other benefits suffered as a
result of the subcontracting of the emergency services work.
WE WILL compensate unit employees for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and WE WILL file with the Regional Director for Region 5, within 21
days of the date the amount of backpay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar years for each employee.
DuPont Specialty Products USA, LLC, as a successor
to E. I. du Pont de Nemours and Company
(Employer)
Dated By
(Representative)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov
Bank of America, Tower II, 100 S. Charles Street, Suite 600, Baltimore, MD 21201-2700
(410) 962-2822, Hours: 8:15 a.m. to 4:45 p.m.
Administrative Law Judge’s decision can be found at www.nlrb.gov/case/05-CA-222622 by using the QR code
below. 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER (410) 962-2880.