E.I. DuPont De Nemours, Louisville Works

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 1084 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 176
1084
E.I. DuPont De Nemours, Louisville Works and Pa-
per, Allied-Industrial, Chemical and Energy
Workers International Union and Its Local 5-
2002. Cases 9–CA–40777 and 9–CA–41634
August 27, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On December 15, 2005, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
General Counsel and the Charging Party filed exceptions
and supporting briefs, and the Respondent filed an an-
swering brief. The General Counsel and the Charging
Party filed reply briefs.*
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The issue presented is whether the Respondent, E.I.
DuPont De Nemours, Louisville Works, violated Section
8(a)(5) and (1) of the Act by unilaterally changing the
terms of the employees’ benefit plan at a time when the
parties were negotiating for a collective-bargaining
agreement and were not at impasse. The Respondent,
relying on the Courier-Journal cases, 342 NLRB 1093
(2004), and 342 NLRB 1148 (2004), contends that its
unilateral changes were consistent with an established
past practice. We find that the Respondent’s reliance on
the Courier-Journal cases is unavailing because the past
changes it relies on were implemented under the author-
ity of a contractual management-rights provision. That
contractually authorized past practice does not support
unilateral changes made during a hiatus between con-
tracts, when the contractual authorization ceased to be
effective.
I.
The Union has long represented the production and
maintenance employees at the Respondent’s facility in
Louisville, Kentucky. In 1994, during contract negotia-
tions, the parties agreed that the employees would be
covered by the Respondent’s Beneflex Plan, under which
the Respondent provides health care and a range of other
benefits to many of its employees nationwide. The par-
ties incorporated the Beneflex Plan, which included a
reservation of rights provision granting the Respondent
authority to modify benefits under the Plan on an annual

basis, into their collective-bargaining agreements in 1994
and 1997. During the terms of those collective-
bargaining agreements, the Respondent made unilateral
changes to the Beneflex Plan annually under the reserva-
tion of rights provision without protest by the Union.
Following the expiration of the parties’ collective-
bargaining agreement in March 2002, and while the par-
ties were negotiating a successor agreement, the Respon-
dent continued, annually, to make unilateral changes to
the Beneflex Plan. The Union objected and asserted that
bargaining over the changes was required. The Respon-
dent refused to bargain, citing its past practice of making
such unilateral changes under the reservation of rights
clause.
II.
It is settled law that when parties are engaged in nego-
tiations for a collective-bargaining agreement an em-
ployer is obliged to refrain from making unilateral
changes, absent an impasse in bargaining for the agree-
ment as a whole. See, e.g., Register-Guard, 339 NLRB
353, 354 (2003); RBE Electronics of S.D., 320 NLRB 80,
81 (1995). As the Supreme Court has recognized, “[I]t is
difficult to bargain if, during negotiations, an employer is
free to alter the very terms and conditions that are the
subject of those negotiations.” Litton Financial Printing
Division v. NLRB, 501 U.S. 190, 198 (1991).
It is undisputed that, at the time that the Respondent
unilaterally implemented changes in the Beneflex Plan,
the parties were engaged in bargaining and were not at
impasse. But relying on the Board’s Courier-Journal
decisions, the Respondent asserts that its unilateral ac-
tions were lawful because they were consistent with the
parties’ past practice. The Respondent bears the burden
of establishing this affirmative defense. Beverly Health
& Rehabilitation Services, 335 NLRB 635, 636 (2001),
enfd. 317 F.3d 316 (D.C. Cir. 2003).
We find that the Respondent has not carried that bur-
den. In the Courier-Journal cases, a Board majority
found that the employer’s unilateral changes to employ-
ees’ health care premiums during a hiatus period between
contracts were lawful because the employer had estab-
lished a past practice of making such changes both dur-
ing periods when a contract was in effect and during hia-
tus periods. The Respondent’s asserted past practice in
this case, in contrast, was limited to changes that had
been made when a contract, which included the reserva-
tion of rights language, was in effect. It is apparent that a
union’s acquiescence to unilateral changes made under
the authority of a controlling management-rights clause
has no bearing on whether the union would acquiesce to
additional changes made after that management-rights
clause expired. The Respondent has simply not carried
E.I. DUPONT DE NEMOURS, LOUISVILLE WORKS 1085
its burden of showing relevant past practice under the
Courier-Journal cases—annual unilateral changes during
hiatus periods. As a result, the Respondent’s prior uni-
lateral changes do not establish a past practice justifying
the Respondent’s unilateral actions during a hiatus be-
tween contracts. The Courier-Journal decisions are
plainly distinguishable on this basis, as the judge ex-
plained in a decision we adopt today in E.I. Dupont de
Nemours & Co., 355 NLRB 177 (2010), presenting a
similar bargaining issue but at a different facility of the
Respondent.
This factual distinction is key because it implicates
important collective-bargaining principles. Extending
the Courier-Journal decisions to the situation presented
here would conflict with settled law that a management-
rights clause does not survive the expiration of the con-
tract embodying it, absent a clear and unmistakable ex-
pression of the parties’ intent to the contrary,1 and does
not constitute a term and condition of employment that
the employer must continue following contract expira-
tion.2 Those principles apply to a broad management-
rights clause as well as to more narrow contractual reser-
vations of managerial discretion addressing, as here, a
specific subject of bargaining3 and embodied in a plan
document that has been incorporated in a collective-
bargaining agreement.4 Moreover, extending Courier-
Journal to circumstances such as those presented here
would render the expiration of the management-rights
clause meaningless wherever the employer had acted
under its authority to make changes during the contract
period. This, in turn, “would vitiate an employer’s bar-
gaining obligation whenever a contract containing a
broad management-rights clause expired.” Beverly

1 See, e.g., Beverly Health & Rehabilitation Services, supra, 335
NLRB at 636 fn. 6 (collecting cases), enfd. 317 F.3d 316 (D.C. Cir.
2003). “The law is quite clear that, when a collective agreement ex-
pires, any management-rights . . . clause it contains expires with it.”
Robert A. Gorman & Matthew W. Finkin, Basic Text on Labor Law
§ 20.16 at 638 (2d ed. 2004) (footnote omitted).
2 Control Services, 303 NLRB 481, 484 (1991) (management-rights
clause “is not, in itself, a term or condition of employment that outlives
the contract that contains it, absent some evidence of the parties’ inten-
tion to the contrary”), enfd. mem. 975 F.2d 1551 (3d Cir. 1992); ac-
cord: Furniture Rentors of America, 311 NLRB 749, 751 (1993) (quot-
ing Control Services, supra), enfd. in relevant part 36 F.3d 1240, 1245
(3d Cir. 1994); Holiday Inn of Victorville, 284 NLRB 916 (1987).
3 See, e.g., Register-Guard, supra, 339 NLRB at 355 (wages); Iron-
ton Publications, 321 NLRB 1048, 1048 (1996) (merit pay increases);
Blue Circle Cement Co., 319 NLRB 954, 954 (1995) (vacation period
and shift-starting time), enfd. in part mem. 106 F.3d 413 (10th Cir.
1997); Furniture Rentors, supra, 311 NLRB at 754 (subcontracting);
Control Services, supra, 303 NLRB at 483–484 (scheduling).
4 See, e.g., Mary Thompson Hospital, 296 NLRB 1245, 1249 (1989),
enfd. 943 F.2d 741 (7th Cir. 1991).

Health & Rehabilitation Services, 335 NLRB at 637.
Such an outcome would discourage, rather than promote,
collective bargaining, in particular, making unions wary
of granting any discretion to management during the con-
tract’s term.5
Our dissenting colleague proposes a departure from
Board precedent when he rejects the conclusion that the
“reservation of rights” provision is a management-rights
clause.6 A management-rights clause is simply a con-
tractual provision that authorizes an employer to act uni-
laterally, in its discretion, with respect to a mandatory
subject of bargaining. “[T]he essence of [a] manage-
ment-rights clause is the union’s waiver of its right to
bargain.” Beverly Health & Rehabilitation Services,
supra, 335 NLRB at 636. Nothing in Board law suggests
that the breadth or narrowness of such a contractual
waiver or whether it is free-standing or embedded in an-
other provision of the contract or an incorporated docu-
ment should alter how it is treated postexpiration. And,
as demonstrated, a “contractual reservation of managerial
discretion . . . does not survive expiration of the contract
that contains it, absent evidence that the parties intended
it to survive.” Register-Guard, supra, 339 NLRB at 355.
The dissent argues that our decision (and the Board
doctrine underlying it) somehow deprives the Respon-
dent of the benefit of its bargain with the Union.7 That
argument reflects a basic misunderstanding of the issue
posed here: the continuing effect of the “reservation of

5 We further observe that the Courier-Journal decisions are in ten-
sion with previously settled principles. First, it is well established that
silence in the face of past unilateral changes does not constitute waiver
of the right to bargain. See Owens-Corning Fiberglass, 282 NLRB 609
(1987); Exxon Research & Engineering Co., 317 NLRB 675, 685–686
(1995). In this regard, the judge here mistakenly ascribed to the Board
a personal statement of position of our dissenting colleague in Larry
Geweke Ford, 344 NLRB 628, 628 fn. 1 (2005) (Member Schaumber’s
personal view that prior acquiescence of the charging party union is not
invariably a requisite element in the past-practice analysis).
Second, it is well established that when parties are bargaining for a
first contract, the employer may not make unilateral changes if they
amount to the exercise of unbounded managerial discretion. See
Eugene Iovine, Inc., 328 NLRB 294 (1999), enfd. 1 Fed.Appx. 8 (2d
Cir. 2001). Nevertheless, because we find that the Courier-Journal
cases are not applicable to the factual situation presented here, we need
not reconsider the holdings of those cases at the present time.
6 Our colleague candidly acknowledges that he “disagree[s] with”
Mary Thompson Hospital, supra, but the decision represents Board law.
He asserts that the other decisions we rely on are “distinguishable,” but
offers no persuasive explanation.
7 We note that the same argument could be made about all terms and
conditions of employment established in a contract containing a man-
agement-rights clause, i.e., that the employer agreed to them only in
return for discretion in other areas. But this logical extension of the
dissent’s position would open a gaping whole in the settled prohibition
of unilateral changes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1086
rights” clause after the contract has expired.8 The Re-
spondent has had the full benefit of its bargain during the
term of the collective-bargaining agreement. It was free
to make changes to employee benefits, in its discretion,
up to the agreement’s expiration. At that point, the terms
and conditions of employment then in place—i.e., the
benefits as unilaterally established by the Respondent
pursuant to the Union’s waiver—became fixed, subject
to the statutory duty to bargain. Board law distinguishes
between terms and conditions of employment established
unilaterally by the employer under a contractual man-
agement-rights clause and the clause itself.9
Our colleague rejects this distinction, insisting para-
doxically that the Respondent preserved the status quo by
changing employees’ terms and conditions of employ-
ment. Accepting his view would mean discarding a long
line of precedent, and he has offered no persuasive rea-
son to do so. The dissent invokes the Courier-Journal
decisions, but reads them so broadly that they would be
in clear conflict with well-established Board doctrine.
As for the dissent’s policy argument—that finding a vio-
lation here threatens the viability of companywide bene-
fit plans covering both represented and unrepresented
employees—it has no clear grounding in the Act, and it
is based on a series of speculative leaps. The short an-
swer is that if “[e]mployers and employees both benefit”
from the continued operation of reservation of rights
clauses in such plans post-expiration, they can easily
agree to such continued operation. Moreover, if our col-
league were correct, then the Act should permit employ-
ers which maintain benefit plans like the Respondent’s to

8 Because this case involves postcontract-expiration unilateral
changes, it does not implicate the debate between the Board and certain
appellate courts over the proper analytical approach to assessing unilat-
eral changes made during the contract term under the purported author-
ity of a contractual provision. See generally Provena St. Joseph Medi-
cal Center, 350 NLRB 808 (2007) (adhering to Board’s traditional
“waiver” standard, and rejecting courts’ “contract coverage” standard).
Courts that adhere to the “contract coverage” standard have properly
recognized the difference between the two situations. See Honeywell
International, Inc. v. NLRB, 253 F.3d 125, 132–133 (D.C. Cir. 2001)
(rejecting employer’s “contract coverage” argument, observing that
union invoked statutory, not contractual, claim to continued status quo
benefits).
9 When the contract no longer is in effect, employment terms and
conditions “are kept in place simply by virtue of Section 8(a)(5) of the
Act rather than by force of contract.” Holiday Inn of Victorville, 284
NLRB 916, 916 (1987). In contrast:
A management-rights clause is not a term and condition of employ-
ment . . . . To the extent it authorizes unilateral action to change mat-
ters that are mandatory subjects of bargaining, it is, in effect, a union’s
waiver of its statutory right to bargain over those matters. Given the
established rule that such waivers must be clear and unmistakable . . .
the waiver normally would be limited to the time during which the
contract that contains it is in effect.
Id. (emphasis added).
refuse to engage in collective bargaining over their plans
at all, so long as they treat unionized and nonunionized
parts of the work force identically. The Board has
rightly rejected that position. See Larry Geweke Ford,
344 NLRB 628 (2005).
III.
The Respondent also contends that its unilateral
changes were privileged under Stone Container Corp.,
313 NLRB 336 (1993). There, the Board held that an
employer may implement a proposal regarding a discrete,
recurring annual event that occurs while contract negotia-
tions are ongoing, so long as it gives the union notice and
an adequate opportunity to bargain about that topic.
Here, the record shows that the Respondent flatly re-
fused the Union’s request during contract negotiations to
bargain over the Respondent’s proposed changes to em-
ployee benefits under the Beneflex Plan. Indeed, the
parties have stipulated that the “Union requested to bar-
gain over these changes” in the Beneflex Plan in 2004
and 2005 but that the “Respondent did not offer to, nor
did it, negotiate over these changes.” Accordingly, Stone
Container provides no defense to the Respondent’s con-
duct.
As discussed above, it was the Respondent’s statutory
obligation to follow the terms and conditions of em-
ployment in the expired contract, until it bargained to
agreement or impasse for a new agreement as a whole.
Id; R.E.C. Corp., 296 NLRB 1293 (1989); Cisco Truck-
ing Co., 289 NLRB 1399, 1400 (1988). By unilaterally
implementing changes to the Beneflex Plan prior to
reaching impasse, the Respondent breached its obligation
to maintain the status quo.
The Respondent was, of course, free to seek agreement
of the Union that the parties’ reservation of rights lan-
guage would remain in effect following contract expira-
tion,10 or to show that was the intent of the parties when
they included that language in their contracts. The Re-
spondent did not do so. Because the Respondent has
failed to justify its unilateral conduct either by proving
relevant past practice or the existence of such an agree-
ment, we find that the Respondent violated Section
8(a)(5) and (1) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, E.I. DuPont De Nemour, Louisville Works,
Louisville, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from

10 In fact, the judge found that Respondent made such a proposal
during the subject negotiations.
E.I. DUPONT DE NEMOURS, LOUISVILLE WORKS 1087
(a) Making unilateral changes to the benefits of unit
employees during periods when the parties are engaged
in negotiations for a collective-bargaining agreement and
have not reached impasse.
(b) In any like or related manner interfering with, re-
straining, 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.
(a) On request of the Union, restore the unit employ-
ees’ benefits under the Beneflex package of benefit plans
to the terms that existed prior to the unlawful unilateral
changes that were implemented on January 1, 2004, and
January 1, 2005, and maintain those terms in effect until
the parties have bargained to a new agreement or a valid
impasse, or until the Union has agreed to changes.
(b) Make unit employees whole by reimbursing them,
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), for any loss of benefits
and additional expenses that they suffered as a result of
the unilateral implemented changes in benefits.
(c) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of money to be
reimbursed under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its Louisville, Kentucky facility copies of the attached
notice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent Raymond to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, it shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former at any time since
January 1, 2004.

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER SCHAUMBER, dissenting.
In finding that the Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally changing certain as-
pects of unit employees’ benefits following the 2002
expiration of the parties’ collective-bargaining agree-
ment, the majority both applies an incorrect legal analy-
sis and incorrectly limits Board precedent. I therefore
dissent and, like the judge in this case, would dismiss the
complaint.
Facts
The Union has represented the Respondent’s produc-
tion and maintenance employees at its Louisville Works
facility for over 50 years. The parties’ most recent collec-
tive-bargaining agreement ran from June 13, 1997, to
March 21, 2002 (the 1997 agreement). The previous
contract ran from May 25, 1994, to March 21, 1997 (the
1994 agreement). At the time of the hearing, in Septem-
ber 2005, the parties had not entered into a successor
agreement.
The Respondent provides benefits to its employees
throughout the United States under its Beneflex Flexible
Benefits Plan (Beneflex Plan). The Beneflex Plan is a
cafeteria-style benefits plan that includes a variety of
benefit options in addition to health care coverage, such
as dental coverage, vision coverage, life insurance, and
(more recently) financial planning and legal services.
The Beneflex Plan covers approximately 60,000 of the
Respondent’s domestic employees, including the unit
employees at the Louisville Works facility. The Bene-
flex Medical Care Plan is a self-insured medical care
option encompassed within the Beneflex Plan.1 The
Beneflex Plan documents have contained, since the in-
ception of those Plans, identical reservations of the Re-
spondent’s right to change either Plan at its sole discre-
tion. The “reservation of rights” provision in the Bene-
flex Plan documents states:

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

1 All references to the Beneflex Plan include the Beneflex Medical
Care Plan, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1088

During the negotiations for the 1994 agreement, the
parties agreed that employees would be covered by the
Beneflex Plan. During those negotiations, the Respon-
dent informed the Union that, under the terms of the
Beneflex Plan, the Respondent would have the authority
to modify the level and/or price of benefits under the
Plan on an annual basis. The Respondent also indicated
that these modifications would occur on a U.S. region-
wide basis. So informed, the Union accepted the Bene-
flex Plan, and it was instituted at Louisville Works on
January 1, 1995. During the negotiations for the 1997
agreement, the Respondent proposed language intended
to confirm the existing benefits received by employees
under the Beneflex Plan, and also that the receipt of
those benefits was subject to all terms and conditions of
the Beneflex Plan. The Respondent, however, ultimately
abandoned this proposal, deciding that it was unneces-
sary in light of the parties’ existing understanding con-
cerning the Beneflex Plan.
From 1995, the first year of implementation, through
2002, the Respondent made annual changes to the Bene-
flex Plan. Each fall, the Respondent presented the Union
with a summary of any contemplated changes to the
Beneflex Plan for the upcoming year. On January 1 of
each year from 1996 to 2002, the Respondent instituted
the changes to the Beneflex Plan at all of its U.S. sites.
In each of those years, the changes took place while a
collective-bargaining agreement covering the Respon-
dent’s bargaining-unit employees was in effect. The
Respondent did not offer to bargain over the changes, nor
did the Union request bargaining or object to the changes
once implemented.
In February 2002, the parties began negotiations for a
successor collective-bargaining agreement. In the fall of
2002, as it had done in the fall of every year since im-
plementing the Beneflex Plan pursuant to its agreement
with the Union, the Respondent presented the Union with
a summary of changes for the Beneflex Plan for the up-
coming year. The Union objected to the proposed
changes and requested bargaining. On January 1, 2003,
the Respondent implemented the changes to the Beneflex
Plan. The Union again sought bargaining, and the Re-
spondent refused to negotiate over the changes.
The same scenario occurred in 2004 and 2005. In
sum, following the expiration of the 1997 agreement in
2002, the Respondent implemented changes to the Bene-
flex Plan in 2003, 2004, and 2005 without bargaining
with the Union, just as it had every year since the Bene-
flex Plan was instituted.
Judge’s Decision
In finding the Respondent’s 2004 and 2005 modifica-
tions to the Beneflex Plan lawful, the judge relied on the
Board’s decisions in Courier-Journal, 342 NLRB 1093
(2004) (Courier-Journal I) and Courier-Journal, 342
NLRB 1148 (2004) (Courier-Journal II). In the Cou-
rier-Journal cases, the Board addressed the question of
whether an employer’s unilateral increase of employee
health insurance contribution rates violated Section
8(a)(5). The Board found that, where the employer had
established a past practice of making annual changes to
its health insurance plan, where the annual changes af-
fected represented and nonrepresented employees
equally, and where the union had acquiesced in the em-
ployer’s practice in treating represented and nonrepre-
sented employees equally in this regard, the employer
had established a past practice of unilateral changes that
the employer was permitted to continue, postcontract
expiration, without running afoul of the Act. Courier-
Journal I, 342 NLRB at 1094–1095; Courier-Journal II,
342 NLRB at 1149–1150.
Analysis
Generally, an employer violates Section 8(a)(5) and
(1) if it makes a unilateral change in wages, hours, or
other terms and conditions of employment without first
giving the Union notice and an opportunity to bargain.
See NLRB v. Katz, 369 U.S. 736, 743 (1962). “[T]he
vice involved in [a unilateral change] is that the employer
has changed the existing conditions of employment. It is
this change which is prohibited and which forms the ba-
sis of the unfair labor practice charge.” Daily News of
Los Angeles, 315 NLRB 1236, 1237 (1994) (quoting
NLRB v. Dothan Eagle, 434 F.2d 93, 98 (5th Cir. 1970))
(emphasis in original), enfd. 73 F.3d 406 (D.C. Cir.
1996), cert. denied 519 U.S. 1090 (1997). It is well un-
derstood, however, that the concept of “change” within
labor law cannot be approached simplistically: under
certain circumstances, not to change would be to change.
Thus, where an employer’s “changes” actually continue a
status quo past practice of like changes, the employer has
not changed existing conditions of employment, and
therefore has not violated Section 8(a)(5) and (1).
In the instant case, the Respondent’s modifications to
the Beneflex Plan on January 1, 2004, and 2005 did not
alter the status quo, and thus the Respondent did not vio-
late Section 8(a)(5). As in the Courier-Journal cases, the
changes here were implemented pursuant to a well-
established past practice. During the negotiations for the
1994 agreement, the parties agreed that unit employees
would be covered by, and subject to, the Beneflex Plan.
The Union accepted the Beneflex Plan in its entirety, and
E.I. DUPONT DE NEMOURS, LOUISVILLE WORKS 1089
it did so on the express understanding that the Respon-
dent reserved the discretion to make changes in the price
or level of benefits under both the Medical Care Plan and
the broader Beneflex Plan on an annual basis pursuant to
the “reservation of rights” provisions. Indeed, during the
parties’ 1994 negotiations, the Respondent specifically
notified the Union that, under the terms of the Beneflex
Plan, the Respondent would have the authority to make
unilateral changes to the Plan. Thus, the Union’s deci-
sion to have its members covered by the terms of the
Beneflex Plan was made with the knowledge that the
Respondent would have the authority to make unilateral,
annual changes to the employee contribution levels and
benefits associated with the Plan. From 1996 to 2002,
the Respondent unilaterally implemented changes to the
Beneflex Plan on an annual basis pursuant to the “reser-
vation of rights” clause. In each instance, the Union did
not oppose the Respondent’s changes.
Following the expiration of the parties’ contract in
2002, the Respondent was required to maintain the terms
and conditions of employment under the expired collec-
tive-bargaining agreement until the parties negotiated a
new agreement or bargained in good faith to impasse.
See, e.g., Cisco Trucking, 289 NLRB 1399, 1400 (1988).
That duty to maintain the status quo required the Re-
spondent to continue to provide unit employees with
benefits under the Beneflex Plan and to implement the
Beneflex Plan in the same manner that it had been im-
plemented in the preceding years, including its annual
changes to the Plan, which it implemented nationwide
for unit and nonunit employees alike. Thus, the Respon-
dent’s modifications to the Beneflex plan on January 1,
2004, and 2005, did not constitute unilateral changes but,
rather, were consistent with the status quo.2
My colleagues say, however, that the Respondent did
not establish that its changes were consistent with past
practice under the Courier-Journal decisions. They at-
tempt to distinguish those cases on two grounds and I
discuss each in turn. First, they claim that, unlike the
Courier-Journal cases, the 1996–2002 modifications to
the Beneflex Plan were implemented under a manage-
ment-rights clause which expired when the parties’ con-
tract expired and therefore did not permit post-contract
modifications. The majority’s characterization of the
“reservation of rights” clause in the Beneflex and Bene-
flex Medical Core Plans as a management-rights provi-
sion is incorrect. These “reservation of rights” clauses are
unlike negotiated management-rights provisions, which

2 Because I find that the Respondent’s changes to the Beneflex Plan
were implemented pursuant to a past practice, I find it unnecessary to
address the majority’s analysis of the Respondent’s changes under
Stone Container Corp., 313 NLRB 336 (1993).
typically reserve to management discretion over a broad
range of otherwise bargainable matters. Instead, they are
discrete, specific, and integral components of the benefit
plans. Because these reservations of rights clauses are
integrated elements contained within the benefit plans,
and pertain solely to the Respondent’s duties and author-
ity in implementing the Plan, the clauses do not consti-
tute management-rights clauses, as those clauses are con-
strued under the Act.3
Further, in contrast to management-rights clauses
which cover subjects not otherwise dealt with in the con-
tract, the reservation of rights clause in the Beneflex Plan
is itself part of the benefits plan to which the parties
agreed contractually. The Respondent and the Union
struck a deal, under which unit employees would receive
the benefits provided under the Plan, subject to the Plan’s
terms and conditions, one of which is the Respondent’s
reservation of a right to make changes to the Plan. To
hold that latter condition, as a matter of law, to be a man-
agement-rights clause would be to create, postcontract
expiration, an arrangement to which the Respondent
never agreed. The Respondent never agreed to provide
benefits under the Plan uncoupled from a unilateral right
to make changes therein. It agreed to provide those
benefits conditionally, and those conditions are as much
a part of the parties’ agreement concerning benefits as
are the benefits themselves. The law should operate to
maintain that benefits agreement postcontract, not to
change it by stripping out the conditions.4
My colleagues next claim that the Courier-Journal
cases are inapposite because “[in the Courier-Journal
cases] the employer had established a past practice of
making such changes during both periods when a con-
tract was in effect and during hiatus periods” and here
the Respondent’s past practice of changes occurred only

3 Thus, Beverly Health & Rehabilitation Services, 335 NLRB 635
(2001), enfd. 317 F.3d 316 (D.C. Cir 2003); Control Services, 303
NLRB 481 (1991); and other similar cases cited by the majority are
distinguishable because they all involve management-rights clauses.
Further, I disagree with Mary Thompson Hospital, 296 NLRB 1245,
1249 (1989), cited by the majority, to the extent that it treated a reser-
vation of rights clause contained within a corporatewide benefit plan as
a negotiated management-rights clause waiving a union’s right to bar-
gain over changes to the plan only for the contract term.
4 The majority contends that the Respondent has had the full benefit
of its bargain during the term of the contract and, once the collective-
bargaining agreement expired, the terms and conditions of employment
established under the reservation of rights clause became fixed and
subject to bargaining over its discrete elements. This is incorrect. It is
the Beneflex Plan, in its entirety, that is the term and condition of em-
ployment and, under this plan, the Respondent has reserved the right to
make changes to the level and/or price of benefits. Once the parties’
contract expired in 2002, the status quo required the Respondent to
maintain this term and condition of employment until the parties nego-
tiated a new contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1090
in the contract term so that the postcontract changes at
issue here were not done pursuant to a past practice.
They sum up—“[t]he Respondent has simply not carried
its burden of showing relevant past practice under the
Courier-Journal cases—annual unilateral changes during
hiatus periods.” In so concluding, my colleagues have
misinterpreted and significantly limited the holding of
the Courier-Journal cases. There is nothing in the rea-
soning of the Courier-Journal decisions to support the
contention that prior hiatus changes were conclusive to
the outcome. The holding of the Courier-Journal cases,
and the established precedent upon which it is based, is
that parties by their actions can create a past practice
authorizing an employer’s unilateral action, which be-
comes the status quo. The logic of these decisions is that
it is the creation of the practice that controls, not the tim-
ing of when the practice happened to arise. The major-
ity’s focus on whether a contract was in existence and
governed the changes, in determining whether a past
practice had been established, is essentially a waiver
analysis. But the Courier-Journal decisions expressly
rejected the application of waiver principles, since a
status quo based on a past practice depends upon the ex-
tent of the parties’ actions, not on the continued existence
of contract language. Accordingly, my colleagues’ inter-
pretation of the Courier-Journal cases cannot stand.5
Further, dismissal of the complaint here is consistent
with sound policy and the realities inherent in the way in
which large, companywide health and benefit plans cov-
ering both represented and unrepresented employees,
such as that at issue here, operate. In the face of con-
tinuously skyrocketing healthcare costs, and the ques-
tionable financial status of many multiemployer pension
and health and welfare plans, parties seeking to provide
decent coverage to employees frequently look to com-
panywide programs as the only economically viable op-
tion. Such large-scale plans achieve economies of scale
and thus reduce costs on a per capita basis, making it
more feasible for the employer to offer attractive bene-
fits. Employers and employees both benefit—employers,
by being able to attract and retain skilled employees by

5 The majority claims my position discards precedent but it is fully
in accord with, inter alia, the Courier-Journal cases and the Board’s
decision in Friendly Ford, 343 NLRB 1058 (2004). They also contend
that I have interpreted the Courier-Journal decisions too broadly. Yet,
the principle that I rely on from the Courier-Journal decisions—that
parties by their actions can create a past practice authorizing an em-
ployer’s unilateral action, which becomes the status quo—is established
under Board and court precedent. See, e.g., Post Tribune Co., 337
NLRB 1279 (2002) (no unlawful unilateral change where employer’s
action does not alter the status quo, and thus there is no change in exist-
ing conditions), relying on, e.g., Daily News of Los Angeles, supra, and
NLRB v. Dothan Eagle, supra, discussed above.
virtue of offering a strong benefits package; employees,
by virtue of having access to the relatively low-priced
benefits afforded by the economies of scale involved in
such plans. Under the majority’s holding, however, em-
ployers will be deterred from offering participation in
such plans to union-represented employees. Companies
like du Pont, with multiple contracts covering multiple
bargaining units nationwide, will be compelled to freeze
in place, unit by unit as contracts expire and successor
agreements are not immediately concluded, extant bene-
fit-plan terms at the moment of expiration, creating a
checkerboard of plans—despite the fact that the unions
expressly agreed to be bound by the plan conditions.
Costs will skyrocket, and the company, rather than ab-
sorb them and the administrative nightmares of post-hoc
reconstruction of plan terms to comply with Board or-
ders,6 will simply stop offering the option to bargaining
unit members. That, in turn, will drive up the costs and
diminish the availability of quality health insurance op-
tions for employees.7
In sum, as the Respondent argues in its brief, the Un-
ion specifically accepted the Beneflex Plan, accepted the
reservation of rights language contained in the plan, and
both parties understood that the Respondent had the right
to make annual changes to the plan. That right, based on
the parties’ mutual agreements and understandings, con-
tinued after the contract was reopened because the right
and past practice was never based on any express waiver
contained in the collective-bargaining agreement. Fun-
damental fairness and the Board’s past practice doctrine

6 In the instant case, the Respondent will be required to continue to
provide the 2002 Beneflex Plan benefits to unit employees, even
though the Plan benefits had subsequently undergone three different
annual revisions. Certainly, there is a chance that, had the Respondent
bargained with the Union over the annual changes, it could have
reached impasse prior to 2006, but there is no guarantee that this would
have occurred.
7 My colleagues assert that I am advocating a policy that would en-
able employers maintaining benefit plans like the Respondent’s to
refuse to engage in collective bargaining over their benefit plans so
long as they treat unionized and nonunionized parts of the work force
identically. The majority misconstrues my position. I have in no way
suggested that the Respondent should not have to bargain over health
care with the Union. My point is that, here, where the Respondent has
established a past practice of modifying its Beneflex Plan, it is sound
policy that the Respondent maintain the discretion to continue this
practice while the parties are bargaining for a successor contract. The
majority also contends that the parties can explicitly agree to the con-
tinued operation of the reservation of rights clauses. However, I find
that the Respondent should not be required to do so.
Further, my colleagues’ reliance on Larry Geweke Ford, 344 NLRB
628 (2005), to support their assertion is misplaced. As I stressed in that
case, the Respondent did not establish that its changes to its health
insurance benefits were implemented pursuant to a well-established
past practice. Id. at fn. 1. Further, that case did not involve a plan
provision authorizing management’s unilateral action.
E.I. DUPONT DE NEMOURS, LOUISVILLE WORKS 1091
govern the result here because the Union can not have it
both ways. The Union is claiming that it is entitled to
receive all benefits available under the plan without the
language (via the reservation of rights clause) that per-
mits the Respondent to modify that very benefit. The
Union cannot take the benefits of the plan while ignoring
the provisions it finds distasteful. The parties specifically
agreed to continue the terms of their bargaining agree-
ment until such terms were modified. The Beneflex Plan
with the Respondent’s corresponding right to make an-
nual changes to that plan is one of the benefits continued
and the Louisville employees have benefited because the
benefits available under the plan continue to be available
to them.
Accordingly, for the reasons stated herein, I agree with
the judge’s finding that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by its modifications to
the Beneflex Plan on January 1, 2004, and 2005 follow-
ing the expiration of the 1997 agreement, and I would
dismiss the complaint.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT make unilateral changes to your benefits
during periods when the Union is engaged in negotia-
tions with us for a collective-bargaining agreement and
we have not reached overall impasse.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, on request of the Union, restore the unit em-
ployees’ benefits under the Beneflex package of benefit
plans to the terms that existed prior to the unlawful uni-
lateral changes that were implemented on January 1,
2004 and January 1, 2005, and maintain those terms in
effect until the parties have bargained to a new agree-
ment or a valid impasse, or until the Union has agreed to
changes.
WE WILL make unit employees whole by reimbursing
them, with interest, for the loss of benefits and additional
expenses that they suffered as a result of the unilateral
changes in benefits that we unlawfully implemented on
January 1, 2005.

E.I. DUPONT DE NEMOURS & COMPANY
Kevin P. Luken, Esq., for the General Counsel.
Mark L. Keenan, Esq. (McGuire Woods, LPP), of Wilmington,
Delaware, for the Respondent.
Kathleen A. Hostetler, Esq., of Denver, Colorado, for the
Charging Party.
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case
was tried in Louisville, Kentucky, on June 21, 2005. The
charge in Case 9–CA–40777 was filed January 2, 2004, and a
charge in Case 9–CA–41634 was filed January 5, 2005.1 (The
additional allegations in Case 9–CA–40919 were settled). The
consolidated complaint was issued March 18, 2005. It alleges
that the Respondent, E.I. DuPont De Nemours, Louisville
Works, violated Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act) by implementing changes to its Bene-
flex 2004, Health and Welfare Benefits without the consent of
the Union, the recognized collective-bargaining representative
of the employees at its Louisville Works, and without affording
the Union an opportunity to bargain.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs and
reply briefs filed by the General Counsel, the Union and the
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the manufac-
ture of fluoro-products at its facility in Louisville, Kentucky,
where it annually sold and shipped goods valued in excess of
$50,000 from its Louisville, Kentucky facility directly to points
outside the Commonwealth of Kentucky. The Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
This case presents the legal issue based upon a stipulated
factual record, whether the Respondent violated the Act by
unilaterally changing health care benefits for unit employees
following the expiration of the collective-bargaining agreement.
The record consists of the stipulation of facts and 56 exhibits,
including the expired collective-bargaining agreement, copies
of DuPont’s medical insurance plan, known as DuPont Bene-
flex Medical Care Plan and copies of DuPont’s benefit plan for

1 All dates are from 2004–2005, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
its employees, known as Beneflex Flexible Benefits Plan, as
well as letters sent by the parties. The record also contains the
testimony of Pamela Murray, senior consultant of DuPont. The
following summary of relevant facts is primarily based on the
Stipulated Facts and the exhibits received into the record (Jt.
Exh. A).
The Respondent, E.I. DuPont De Nemours, Louisville
Works, and the Union have had a bargaining relationship for
over 50 years. During that time, the Neoprene Craftsmen Un-
ion (NCU) represented the production and maintenance em-
ployees at the Louisville Works. In June 2002, NCU voted to
affiliate with the Paper, Allied-Industrial, Chemical, and En-
ergy Workers International Union (PACE) and became Pace
Local 5-2002. In April 2005, Pace merged with the Steelwork-
ers of America and became USW.
The Respondent and the Union (NCU) were parties to collec-
tive-bargaining agreements covering DuPont’s bargaining unit
employees. The agreement continued year to year unless re-
opened by one of the parties 60 days prior to the expiration date
of the contract. The contracts provided for a wage re-opener
which was exercised annually. The parties’ most recent collec-
tive-bargaining agreement was effective from June 13, 1997, to
March 21, 2002. The prior agreement ran from May 25, 1994,
to March 21, 1997.
Of significance are the Respondent’s Beneflex Plan (Jt. Exh.
2), and the Beneflex Medical Care Plan (Jt. Exh. 3). During
negotiations for the March 1994 agreement, the Respondent
proposed and the Union (NCU) accepted the proposal to have
the employees covered by the DuPont Beneflex Medical Care
Plan (Beneflex Medical). More specifically, the bargaining
agreement provides: “The COMPANY will provide basic Hos-
pital and Medical-Surgical coverage as set forth in the DuPont
BeneFlex Medical Care Plan.” (Jt. Exh. 1.) The parties further
agreed that employees would be covered by the DuPont U.S.
regionwide Beneflex Flexible Benefits Plan (Beneflex Plan).
The Beneflex Plan is a cafeteria-style benefits plan, which in-
cludes a variety of benefit options in addition to health care
coverage, such as dental coverage, vision coverage, and life
insurance. Employees are provided with annual enrollment peri-
ods each fall at which point the employee elects the level of
health care desired and other elections of benefit options. Bene-
flex Medical is a self-insured medical care option encompassed
within the Beneflex Plan. All DuPont sites in the United States
participate in Beneflex. The Beneflex Plan, including Beneflex
Medical, was implemented at the Louisville site effective January
1, 1995.
During the negotiations for the 1994 collective-bargaining
agreement, the Respondent pointed out to the Union that under
the terms of the Beneflex Plan, the Respondent would be permit-
ted to alter the level and/or costs of benefits under the plan on an
annual basis. The Respondent also noted that such changes
would be made on a U.S. regionwide basis. Based on these un-
derstandings, the union membership accepted the Beneflex Plan.
In May 1994, the Union (NCU) ratified the collective-bargaining
agreement which cited DuPont’s Beneflex Medical Plan. Under
the terms of the Beneflex Plan and the Beneflex Medical Plan,
the Respondent has the right to change or alter the level or cost of
benefits under the plan on an annual basis. Both documents, the
Beneflex Plan and the Beneflex Medical Plan, contain identical
provisions to that effect, stating, inter alia: “The Company re-
serves the sole right to change or discontinue this plan in its dis-
cretion, provided.” (Jt. Exhs. 2, 3.)
In the fall of 1995, the Respondent presented to the Union
(NCU) with a summary of any upcoming changes to the Bene-
flex Pan, as well as any changes or premium increases for Bene-
flex Medical, for the upcoming year. The Respondent subse-
quently mailed a “Plain Talk” to all U.S. Region DuPont em-
ployees, including Louisville employees represented by the Un-
ion (NCU). The Plain Talk was a publication used and distrib-
uted by the Respondent each fall to communicate changes to the
Beneflex Plan, including any changes or premium increases to
Beneflex Medical, to all participants in the Beneflex Plan for the
upcoming calendar year.
On January 1, 1996, the Respondent implemented the changes
to the Beneflex Plan. The terms of the Beneflex Plan and the
Beneflex Medical allowed the Respondent to alter costs incurred
by unit members and/or levels of benefits received by unit mem-
bers under the Plan. The Respondent did not offer to negotiate
over these changes, nor did the Union seek to bargain over these
changes.
In the fall of each year thereafter, from 1995 to 2001, the Re-
spondent and the Union met. The Respondent presented the un-
ion representatives with a summary of any changes for the up-
coming year to the Beneflex Plan, as well as any changes or pre-
mium increases for Beneflex Medical. The Respondent subse-
quently mailed a “Plain Talk” each year to all U.S. Region Du-
Pont employees, including the Louisville employees represented
by the Union. On January 1 of each year, from 1996 to 2002, the
Respondent implemented the changes to the Beneflex Plan which
had earlier been presented to the Union. The Respondent did not
offer to negotiate over these changes, nor did the Union seek to
bargain over these changes. In some years the Respondent im-
plemented 5 changes, in other years 7 changes, and in 2002 the
Company implemented 13 changes. The changes included, in-
creases in premiums for medical coverage, changes to pharmacy
benefits, increases to premiums for vision coverage and, in the
following year, decreases in premiums for vision coverage, and
changes in the rules for spousal medical coverage.
On January 16, 2002, the Union (NCU) notified the Respon-
dent that it intended to open negotiations for a successor contract.
On February 26, 2002, the parties began negotiations for a suc-
cessor collective-bargaining agreement. The parties agreed that
if an agreement had not been reached by the contract negotiation
date, management would honor the terms and conditions of the
contract day-to-day until something different was bargained. On
March 21, 2002, the bargaining agreement between the Respon-
dent and the Union (NCU) expired (Jt. Exh. 9).
In June 2002, the Union (NCU) voted to affiliate with Paper,
Allied-Industrial, Chemical and Energy Workers International
Union (PACE). The Respondent immediately recognized
PACE.
In the fall of 2002, the Respondent met with the Union and
presented a summary of the changes for the Beneflex Plan, as
well as changes and/or premium increases in Beneflex Medical,
for the upcoming year. The Respondent subsequently mailed a
“Health Care 2003 Communication for Employees” (in lieu of a
E.I. DUPONT DE NEMOURS, LOUISVILLE WORKS 1093
“Plain Talk”) to all U.S Region DuPont employees, including
Louisville employees represented by the Union.
On October 24 and November 27, 2002, the Union (PACE
Local 5-2002) on behalf of the DuPont bargaining unit, wrote
to the Respondent, contending that any changes to the Beneflex
were subject to good-faith bargaining before implementation,
and requesting bargaining on this subject (Jt. Exhs. 35, 37(a)).
On November 21 and December 19, 2002, the Respondent
wrote to the Union reiterating its position that it was not re-
quired to bargain over any changes to the Beneflex Plan, in-
cluding premium increases (Jt. Exhs. 36, 37).
On January 1, 2003, the Respondent implemented the
changes to the Beneflex Plan for the DuPont bargaining unit
employees. The terms of the Beneflex Plan and Beneflex
Medical allowed the Respondent to alter the costs incurred by
unit members and/or the levels of benefits received by unit
members. The Union requested bargaining, however, the Re-
spondent did not offer to, nor did it, negotiate over these
changes.
On June 2, 2003, the Union (PACE Local 5-2002) filed an
unfair labor practice charge (Case 9–CA–40262–1), alleging
that the Respondent violated the Act by unilaterally implement-
ing changes to the Beneflex Plan, including increased premi-
ums, for the DuPont bargaining unit employees. On December
10, 2003, these charges were dismissed on (10(b) issue) proce-
dural grounds. The decision was upheld on March 5, 2004, by
the Office of Appeals.
In the fall of 2003, while negotiations for a successor agree-
ment were ongoing, the Respondent and the Union (PACE
Local 5-2002) met and the union representatives were pre-
sented with a summary of changes for the upcoming year to the
Beneflex Plan, as well as changes and/or premium increases for
Beneflex Medical for the upcoming year. The Respondent
subsequently mailed a “Plain Talk” to all U.S. Region DuPont
employees.
On October 22, 2003, the Union (PACE Local 5-2002) again
wrote to the Respondent contending that any changes to the
current Beneflex Plan for the Dupont bargaining unit were sub-
ject to good-faith bargaining before implementation, and re-
questing bargaining on the proposed changes (Jt. Exh. 43). On
October 22, 2003, the Respondent wrote to the Union restating
its position that the Respondent had the right to make changes
to the Beneflex Plan (Jt. Exh. 44). The Union reiterated its
position on November 4, 2003, that the Respondent was re-
quired to bargain over any changes to the Beneflex Plan and
that any reliance on the management rights clause was mis-
placed (Jt. Exh. 45).
On January 1, 2004, the Respondent implemented the
changes to the Beneflex Plan for the DuPont bargaining unit
employees. These changes included increases in premiums for
medical coverage, implementation of a new dental plan, and the
addition of a legal services plan. The Union requested to bar-
gain over the changes, however, the Respondent did not offer
to, nor did it, negotiate over these changes.
The same scenario was repeated the next year. In the fall of
2004, while negotiations for a successor agreement were con-
tinuing, the Respondent presented the Union with a summary of
changes to the Beneflex Plan, as well as changes or premium
increases for the Beneflex Medical Plan for the upcoming year.
On October 14, 2004, the Union (PACE Local 5-2002) wrote to
the Respondent contending that any changes to the current
Beneflex Plan for the Dupont bargaining unit were subject to
good-faith bargaining (Jt. Exh. 48). On October 20, 2004, the
Respondent wrote to the Union, restating its position that the
Respondent had reserved the right to make changes to the
Beneflex Plan, and that the Respondent had consistently taken
this position the past few years (Jt. Exh. 49).
On January, 1, 2005, the Respondent implemented changes
to the Beneflex Plan for the DuPont bargaining unit employees.
The Union requested to bargain over these changes, but the
Respondent did not offer to, nor did it, negotiate over these
changes. In short, following the expiration of the collective-
bargaining agreement in 2002, the Respondent implemented
changes to the Beneflex Plan, including the Beneflex Medical
Plan in 2003, 2004, and 2005 without bargaining with the Un-
ion.
In sum, for a period, from 1994 to 2001, during the existence
of successive collective-bargaining agreements, the parties had
agreed that the Respondent would make annual changes to the
Beneflex Plan, including the Beneflex Medical Plan. Indeed,
by the terms of the Beneflex Plan and the Beneflex Medical
Plan the Respondent had reserved the right to make changes.
Following the expiration of the bargaining agreement, the Re-
spondent rejected the Union’s repeated demands to bargain
over any changes to these plans.
On January 2, 2004, the Union filed the charges in Case 9–
CA–40777, giving rise to the instant complaint, challenging the
Respondent’s unilateral changes implemented on January 1,
2004, and those implemented on January 1, 2005.
Analysis
The General Counsel and the Union argue that the Respon-
dent’s unilateral changes to the Beneflex Plan were lawful dur-
ing the term of the bargaining agreement, because the parties
had agreed, but when the agreement expired, so did the Union’s
consent to any further unilateral changes. The Respondent
argues that the parties agreed that “management would honor
the terms and conditions of contract day-to-day until something
different was bargained,” and that, in any case, the changes
were authorized by past practice.
Section 8(a)(5) of the Act establishes an employer’s duty to
bargain collectively with the employees’ representative. The
parties agree that unilateral changes by an employer during the
course of a collective-bargaining relationship concerning mat-
ters that are mandatory subjects of bargaining are usually con-
sidered a refusal to bargain. NLRB v. Katz, 369 U.S. 736
(1962). It is also not disputed that health insurance and medical
benefits are mandatory subjects of bargaining. Mid-Continent
Concrete, 336 NLRB 258 (2001), enfd. 308 F.3d 859 (8th Cir.
2002). Accordingly, without the Union’s consent, health care
benefits cannot lawfully be changed. And a union’s waiver of
its bargaining rights must be clear and unmistakable. Metro-
politan Edison Co. v. NLRB, 460 U.S. 693, 702 (1983).
Here, the expired contract contained a management rights
provision which operates as a waiver of the Union’s bargaining
rights as to mandatory subjects and which authorized the Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
spondent to implement the annual changes. However, such
provisions usually terminate with the expiration of the contract.
In Register-Guard, 339 NLRB 353, 355 (2003), the Board
stated that a “contractual reservation of managerial discretion,
like the provision relied on by the Respondent, does not survive
expiration of the contract that contains it, absent evidence that
the parties intended it to survive,” citing Ironton Publications,
Inc., 321 NLRB 1048 (1996), and Blue Circle Cement Co., 319
NLRB 954 (1995). More recently, the Board reaffirmed that
principle in Long Island Head Start Child Development Ser-
vices, 345 NLRB 973 (2005). There the Board similarly stated:
“A contractual reservation of management-rights does not ex-
tend beyond the expiration of the contract in the absence of the
parties’ contrary intentions.” Here, there is no clear evidence
that the parties had expressed such intentions. Instead, the Re-
spondent has taken the position that its agreement, namely,
“management would honor the terms and conditions of contract
day-to-day until something different was bargained,” as imply-
ing that the terms of the contract continued in effect, thereby
maintaining the status quo between the parties.
The record supports that notion. The Respondent’s changes
in the Beneflex Plan, including the Beneflex Medical Plan, for
the duration of the collective-bargaining agreements from 1995
to 2002, affected both, the represented and also the nonrepre-
sented employees. In some years, medical premiums increased,
but other benefits showed decreases in premiums, as for exam-
ple in 2001, premiums for dependent life insurance and for
accidental death insurance were decreased. In 2000, the annual
changes included decreases in premiums for vision coverage.
And the 1999 changes included reductions in deductibles for
medical care options A and B. These examples and others are
indicative that the unilateral changes made by DuPont to the
many benefit packages under the Beneflex Plan often benefited
the employees. The changes were implemented annually at the
beginning of the year with advance notice to the Union and to
the employees. There is also no evidence that the Respondent
abused its rights to effectuate changes in the Beneflex Plan
during the life of the collective-bargaining agreement to the
detriment of the unit employees, or that the implemented
changes after the expiration of the contract deviated from the
established pattern.
Under these circumstances, I find two recent Board decisions
to be most relevant, Courier-Journal, 342 NLRB 1093 (2004),
and Courier-Journal, 342 NLRB 1148 (2004). In the former
case, referred to as Courier-Journal I, the Board under a factual
scenario similar to the one here, decided that the Respondent
had not violated the Act, because the union’s acquiescence in
past unilateral action by the employer had established a past
practice. The Board emphasized that in so holding, it did “not
pass on the legal issue of whether a contractual waiver of the
right to bargain survives the expiration of the contract,” and
that its “decision is not grounded in waiver,” but that it “is
grounded in past practice, and the continuation thereof.” In the
second case, the Board succinctly restated its holding applica-
ble to both cases as follows:

There (Courier- Journal I), as here, the Respondent’s collec-
tive-bargaining agreement (with a different union) authorized
the Respondent to change the costs and benefits of the health
care plan for bargaining unit employees unilaterally, on the
same basis as for nonrepresented employees. There, as here,
the Respondent made numerous unilateral changes in the
health care plan, both during the term of the agreement and
during the hiatus periods between contracts, without opposi-
tion from the Union. In these circumstances, we find, as we
did in Courier-Journal I, that the Respondent’s practice has
become an established term and condition of employment,
and therefore that the Respondent did not violate Section
8(a)(5) when it acted consistently with that practice by mak-
ing further unilateral changes.

The General Counsel and the Charging Party properly point
out that the unilateral changes made by the Respondent, unlike
those in Courier-Journal, were made only during the life of the
contract and never during a contract hiatus period. To be sure,
that is a valid distinction and that is the only factor which de-
tracts from the full precedential value of the decisions. In my
opinion, that difference would clearly be relevant if the Board’s
holding were based on a waiver theory, because there the union
failed to challenge the unilateral changes during the hiatus pe-
riod. As already stated, however, the Board emphasized that its
holding was based on past practice, and concluded that the
respondent’s practice had become an established term and con-
dition of employment. Arguably, an established past practice
could be considered a form of a waiver, and it is not clear if the
Board would have come to the same conclusion, had it not been
for the hiatus period. In Larry Geweke Ford, 344 NLRB 628
(2005), the Board addressed the issue, while commenting on its
holdings in Courier-Journal, stating that the “prior acquies-
cence of the charging party union is not invariably a requisite
element in the past practice analysis” (at fn. 1). There, the
Board held that providing the same health plan for all its em-
ployees on a companywide basis was insufficient to exempt it
from the bargaining obligation, unless an employer can “claim
that it had an established past practice of making regular annual
changes in premium amounts or other aspects of the health
coverage of its employees.”
Here, the Respondent implemented the unilateral changes
routinely from January 1, 1996, and every year thereafter until
January 1, 2002, a 7-year period, with reasonable certainty, not
more frequently than once a year. The Union was always noti-
fied in the fall of the preceding year and presented with a sum-
mary of changes, including increases in premiums, if any. The
Respondent mailed the “Pain Talk” publication to all partici-
pants in the Beneflex Plan. The changes were predictably im-
plemented each year on the first of January. The record does
not suggest that any unilateral changes, implemented during the
life of the contract or thereafter, were made arbitrarily or on an
ad hoc basis to the disadvantage of the represented employees.
Moreover, when the bargaining representatives for the respec-
tive parties began negotiations for a successor contract in 2002,
the parties agreed that the Respondent would honor the terms
and conditions of the contract until something different was
bargained. Although required by law, according the General
Counsel, that agreement has maintained the working conditions
of the unit employees and the respective positions between the
E.I. DUPONT DE NEMOURS, LOUISVILLE WORKS 1095
parties until they negotiate a mutually agreeable understanding
as to the Respondent’s rights to effectuate changes to its Bene-
flex Plan, including the Beneflex Medical Plan.
Mindful of the positions so forcefully argued by the General
Counsel and particularly, the Charging Party, that the prior
agreement did not automatically renew, and that the Union’s
consent had expired following the expiration of the contract, I
have some reservation. However, I find that the Courier-
Journal decisions are most closely analogous to the case before
me. There, as here, the Respondent established a several year
routine amounting to a past practice which survived the con-
tract and maintained the status quo. Unlike the employer in
Long Island Head Start Child Development Services, 345
NLRB 973, 973 fn. 5 (2005), I find (in the words of the Board)
that the Respondent has “demonstrated an established past
practice of exercising its own discretion in changing its health
care plan.”
CONCLUSIONS OF LAW
1. The Respondent, E.I. DuPont de Nemours, Louisville
Works, is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent’s unilateral changes to the Beneflex Plan
following the expiration of the collective-bargaining agreement
did not violate Section 8(a)(5) of the Act, because the conduct
was consistent with a lawful, established past practice.
[Recommended Order for dismissal omitted from publica-
tion.]
.