E.I. DUPONT DE NEMOURS - LOUISVILLE WORKS

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 113 (N.L.R.B. 2016)

364 NLRB No. 113
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
E.I. Du Pont de Nemours, Louisville Works and Pa-
per, Allied-Industrial, Chemical and Energy
Workers International Union and its Local 5-
2002
E.I. Du Pont de Nemours and Company and United
Steel, Paper and Forestry, Rubber, Manufactur-
ing, Energy, Allied Industrial and Service
Workers International Union (USW) and its Lo-
cal 4-786. Cases 04–CA–033620, 09–CA–040777,
and 09–CA–041634
August 26, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
HIROZAWA, AND MCFERRAN
We consider these now-consolidated proceedings on
remand from the United States Court of Appeals for the
District of Columbia Circuit. As directed by the court,
we review again the issue whether unilateral changes
made by E.I. du Pont de Nemours, Louisville Works and
E.I. du Pont de Nemours and Company (collectively, the
Respondent) to unit employees’ benefit plans after expi-
ration of a collective-bargaining agreement violated Sec-
tion 8(a)(5) and (1) of the Act. For the reasons set forth
in this decision, we reaffirm the Board’s prior findings of
violations. In doing so, we reaffirm and apply Board
precedent that, as the court acknowledged, held that dis-
cretionary unilateral changes ostensibly made pursuant to
a past practice developed under an expired management-
rights clause are unlawful. We likewise adhere to and
apply Board precedent defining what constitutes a past
practice that an employer must continue as status quo
terms and conditions of employment in the absence of a
collective-bargaining agreement. To the extent that cer-
tain Board decisions cited by the court1 conflict with the
precedent on which we rely, they are today overruled as
ill-advised and unexplained departures from well-
established complementary legal principles that are es-
sential to effectuating the Act’s fundamental purpose of
protecting and promoting the practice of collective bar-
gaining and the rights of employees to fully engage in
that practice through their chosen representative.

1 E.g., Beverly Health & Rehabilitation Services, 346 NLRB 1319
(2006); Courier-Journal, 342 NLRB 1093 (2004); Capitol Ford, 343
NLRB 1058 (2004).
I. PROCEDURAL BACKGROUND
On August 27, 2010, the National Labor Relations
Board issued decisions and orders finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
unilaterally changing the terms of the unit employees’
Beneflex benefit plan at its facilities in Louisville, Ken-
tucky and Edge Moor, Delaware, after the collective-
bargaining agreement for each facility had expired.2 The
Respondent petitioned for review of the Board’s Orders
with the United States Court of Appeals for the District
of Columbia Circuit, and the Board cross-petitioned for
enforcement. On June 8, 2012, the court granted the
Respondent’s petitions for review, denied the Board’s
cross-petitions for enforcement, and remanded the cases
to the Board for further proceedings consistent with the
court’s opinion. E.I. du Pont de Nemours & Co. v.
NLRB, 682 F.3d 65 (D.C. Cir. 2012). By letter dated
October 31, 2012, the Board notified the parties that it
had accepted the remand and invited the parties to file
statements of position. Thereafter, the Respondent, the
Acting General Counsel, and the Charging Party each
filed a position statement.
The Board has considered the decisions and the record
in light of the court’s remand and the parties’ statements
of position. For the reasons discussed below, we affirm
the Board’s prior findings that the Respondent violated
Section 8(a)(5) and (1) in both cases.3
II. FACTS
The facts of these cases are set out in full in the
Board’s prior decisions. In brief, the Union has long
represented bargaining units of production and mainte-
nance employees at the Respondent’s Louisville and
Edge Moor facilities. In the 1990s, the Respondent cre-
ated the company-wide Beneflex Flexible Benefits Plan
(Beneflex Plan), a cafeteria-style compendium of numer-
ous individual medical, dental, life insurance, and finan-
cial benefit plans, most of which were self-insured. The
plan documents contained the following reservation of
rights clause:

2 E.I. du Pont de Nemours, Louisville Works (DuPont-Louisville),
355 NLRB 1084 (2010); E.I. du Pont de Nemours and Company (Du-
Pont-Edge Moor), 355 NLRB 1096 (2010), enf. denied 682 F.3d 65
(D.C. Cir. 2012).
3 The Respondent asserts that these cases are not properly before the
Board because, at the time the Board accepted the court’s remand in
2012, it did not have the necessary quorum to act. We reject this argu-
ment. The court’s unchallenged order remanded the case to the Board;
the Board’s acceptance of the court’s remand is nothing more than an
administrative effectuation of the court’s order.
We deny the Respondent’s request for oral argument, as the record,
exceptions, briefs and statements of position filed by the parties ade-
quately present the issues.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
Subsequently, the Union agreed in separate collective-
bargaining negotiations that unit employees at the Louis-
ville and Edge Moor facilities would be covered by the
Beneflex Plan, including the reservation of rights provi-
sion.4 Pursuant to the reservation of rights language, the
Respondent announced widespread and varied annual
changes to the Beneflex Plan in the fall of each year that
the contracts were in effect, and it implemented those
changes on the following January 1 without objection
from the Union. Some of the plan changes recurred reg-
ularly. Other changes were made only once or intermit-
tently. The Respondent did not contend, and the record
does not show, that it followed any fixed criteria in mak-
ing these changes.
Following the expiration of the parties’ collective-
bargaining agreements at Louisville in March 2002, and
Edge Moor in May 2004, and while the parties were ne-
gotiating successor agreements, the Respondent contin-
ued to make numerous annual unilateral changes to the
Beneflex Plan.5 The Union objected and asserted that
bargaining over the changes was required.6 At Louis-

4 In DuPont-Louisville, the Beneflex Plan was incorporated into the
parties’ collective-bargaining agreements in 1994 and 1997; for
DuPont-Edge Moor, it was incorporated in 1994 and 2000.
5 At Louisville, post-expiration changes implemented on January 1,
2004 included increases in medical premiums, a new dental plan, and
the addition of a legal services plan. DuPont-Louisville, 355 NLRB at
1093. Postexpiration changes implemented at both Louisville and Edge
Moor on January 1, 2005, included increased prescription drug costs,
penalties for purchasing “maintenance medication” at retail pharmacies
rather than through a designated mail order service, elimination of the
“Employee + One” coverage level for medical, dental, and vision bene-
fits and replacement with “Employee + Child(ren)” and “Employee +
Spouse” coverage levels, increase in some medical and dental premi-
ums, changes in coverage levels for medical, dental, and vision options,
increases in premiums for the financial planning program, and the
addition of a new health savings account plan. DuPont-Edge Moor,
355 NLRB at 1102.
6 The Respondent argues that, in DuPont-Louisville, the Union did
not challenge the Respondent’s 2003 changes to the Beneflex Plan.
However, the evidence shows that, in the fall of 2002, when the Re-
spondent met with the Union and presented a summary of the changes
for the Beneflex Plan for the upcoming year, the Union informed the
Respondent that any changes to the plan were subject to bargaining.
And after the Respondent implemented the changes on January 1, 2003,
the Union filed an unfair labor practice charge, alleging that the chang-
es to the Beneflex Plan were unlawful. Although this charge was ulti-
mately dismissed on procedural grounds, the Union subsequently filed
ville, the Respondent refused to bargain over the chang-
es, contending that it was not required to do so because it
had a past practice of making annual changes when the
collective-bargaining agreements had been in effect. At
Edge Moor, some bargaining took place, but it is undis-
puted that the parties were not at impasse when the Re-
spondent implemented the changes. The Respondent did
not contend at either location that its post-expiration uni-
lateral changes to Beneflex were compelled by exigent
economic circumstances.7
III. THE PRIOR BOARD DECISIONS
In separate decisions for these companion cases, the
Board found that the Respondent violated the Act by
unilaterally changing the terms of the Beneflex Plan fol-
lowing the expiration of the applicable collective-
bargaining agreements, when the parties were negotiating
for successor collective-bargaining agreements and were
not at impasse. The Board rejected the Respondent’s
defense that the post-expiration changes to the Beneflex
Plan were privileged by past practice. It found that be-
cause the ostensible past practice was based on prior
changes that were implemented pursuant to a manage-
ment-rights clause in the contracts (i.e., the Beneflex
reservation of rights provision), the Respondent’s ability
to continue making such changes did not survive the ex-
piration of those contracts. DuPont-Louisville, 355
NLRB at 1084–1086; DuPont-Edge Moor, 355 NLRB at
1096. In both cases, the Board rejected the Respondent’s
argument that the changes were lawful under the Couri-
er-Journal cases, 342 NLRB 1093 (2004) (Courier-
Journal I), and 342 NLRB 1148 (2004) (Courier-Journal
II),8 in which the Board had accepted a “past practice”
defense to alleged postexpiration unilateral changes to
employees’ health benefits. The Board distinguished
Courier-Journal on the basis that the employer in those
cases had established a past practice of making unilateral
changes to employees’ health care premiums both during
the term of the contract and during hiatuses between con-
tracts, indicating that the changes were not made exclu-
sively pursuant to a contractual waiver. DuPont-Edge
Moor, 355 NLRB at 1104–1105. The Board reasoned
that extending the Courier–Journal decisions to the situ-
ation presented here, where the past practice consisted

charges in January 2004 that gave rise to the present complaint in
DuPont-Louisville.
7 See generally RBE Electronics of S.D., Inc., 320 NLRB 80 (1995),
and Bottom Line Enterprises, 302 NLRB 373 (1991), enfd. 15 F.3d
1087 (9th Cir. 1994); see also Maple Grove Health Care Center, 330
NLRB 775, 779 (2000) (finding that the employer failed to establish
exigent economic circumstances that would justify its unilateral imple-
mentation of an increase in employees’ health insurance premiums).
8 Where appropriate, we collectively refer to the two cases as “Cou-
rier-Journal.”
E.I. DU PONT DE NEMOURS 3
only of changes made during a contract term, “would
conflict with settled law that a management-rights clause
does not survive the expiration of the contract.” DuPont-
Louisville, 355 NLRB at 1085.
IV. THE DISTRICT OF COLUMBIA CIRCUIT’S OPINION
On review, the court concluded that the Board had de-
parted without reasoned justification from Board prece-
dent in finding the unilateral Beneflex changes to be un-
lawful. E.I. du Pont de Nemours & Co. v. NLRB, 682
F.3d at 68–70. The court accepted the proposition that
during negotiations an employer may not unilaterally
make discretionary changes to employees’ terms and
conditions of employment. In this case, however, the
court found that the changes at issue were consistent with
an established past practice because they were “similar in
scope to those [the Respondent] had made in prior
years,” the Respondent’s discretion in making the chang-
es was sufficiently limited to the annual enrollment peri-
od and, like the employer in Courier-Journal, the Re-
spondent’s discretion was constrained by the requirement
to treat represented and unrepresented employees alike.
Id. at 68. For those reasons, the court held that the Re-
spondent’s across-the-board unilateral changes to the
Beneflex Plan during the annual enrollment period were
lawful under Courier-Journal. Id. at 68–69.
The court rejected the Board’s reliance on the factual
distinction drawn between the present cases and Courier-
Journal: that (as explained), the Respondent’s past
changes to Beneflex were made only while the contrac-
tual reservation-of-rights clauses were in effect whereas
in Courier-Journal the employer had made changes dur-
ing both contract and hiatus periods. Unlike the Board,
the court focused on the existence of the past practice
itself, finding it immaterial that the practice had its ori-
gins in an expired management-rights clause. In support
of that approach, the court pointed out that Courier-
Journal I specifically stated that the legality of the post-
expiration changes did not depend on “whether a con-
tractual waiver of the right to bargain survives the expira-
tion of the contract” but rather rests on whether the
change “is grounded in past practice, and the continuance
thereof.” Id. at 69 (quoting Courier-Journal, 342 NLRB
at 1095).9

9 The court also noted similar language in Beverly Health and Reha-
bilitation Services, Inc. v. NLRB, 297 F.3d 468, 481 (6th Cir. 2002),
that “it is the actual past practice of unilateral activity under the man-
agement-rights clause of the CBA, and not the existence of the man-
agement-rights clause itself, that allows the employer’s past practice of
unilateral change to survive the termination of the contract.” As dis-
cussed below in fn.17, the Sixth Circuit’s holding in Beverly Health is
flawed.
The court concluded that the Board’s reasoning was
inconsistent with additional cases as well. The court
cited Capitol Ford, 343 NLRB 1058 (2004), for exam-
ple, where the Board found that a successor employer
could continue a predecessor’s past practice developed
under an expired contract to justify changes during a
hiatus period. Likewise, the court found that the Board’s
position was inconsistent with Beverly Health & Reha-
bilitation Services, Inc., 346 NLRB 1319 (2006) (Beverly
2006), in which two panel members stated that “without
regard to whether the management-rights clause sur-
vived, the [employer] would be privileged to have made
the unilateral changes at issue if [its] conduct was con-
sistent with a pattern of frequent exercise of its right to
make unilateral changes during the term of the contract.”
Id. at 1319 fn. 5.10
Significantly, the court nevertheless acknowledged
that in several earlier cases, including Beverly Health &
Rehabilitation Services, 335 NLRB 635, 636–637 (2001)
(Beverly 2001), enfd. in relevant part 317 F.3d 316 (D.C.
Cir. 2003), and Register-Guard, 339 NLRB 353, 355–
356 (2003), the Board had held that “unilateral changes
made pursuant to a past practice developed under an ex-
pired management-rights clause were unlawful.” Despite
these earlier decisions, the court observed, the Board
“clearly took a different position in its more recent deci-
sions.” E.I. du Pont de Nemours & Co. v. NLRB, 682
F.3d at 70.11
Given the court’s rejection of the Board’s attempt to
distinguish Courier-Journal, the court concluded that the
Board had failed to provide a reasoned justification for
departing from its more recent precedent. Recognizing,
however, that the Board’s view was consistent with its
earlier precedent, the court remanded the present cases
for further consideration. Specifically, the court directed
the Board to “conform to its precedent in Capitol Ford
and in the 2006 iteration of Beverly Health and Rehabili-
tation Services or explain its return to the rule it followed
in its earlier decisions.” Id.
V. DISCUSSION
Consistent with the court’s remand instructions, we
have examined the Board’s decisions in Courier-Journal,
Capitol Ford, and Beverly 2006, in light of the Act’s
fundamental policy to promote the practice of collective
bargaining and longstanding precedent implementing
that policy. For the reasons fully set forth below, we find
that these considerations strongly support finding the

10 Inasmuch as these Board Members found the changes at issue un-
lawful, this language was dicta.
11 We note that the Board’s “more recent decisions” made no attempt
to address prior precedent, from which they deviated.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 8(a)(5) and (1) unilateral change violations in the
present cases and overruling the cited cases to the extent
they are irreconcilable with those considerations. We
thus choose the second option identified by the court, and
return to the rule followed in Beverly 2001 and Register-
Guard: that unilateral, postexpiration discretionary
changes are unlawful, notwithstanding an expired man-
agement-rights clause or an ostensible past practice of
discretionary change developed under that clause.
A fundamental purpose of the Act, set forth in Section
1, is to “encourage[e] the practice and procedure of col-
lective bargaining . . . for the purpose of negotiating the
terms and conditions of . . . employment.” In furtherance
of this statutory purpose, Section 8(d) of the Act imposes
an obligation on parties in a collective-bargaining rela-
tionship to bargain collectively and in good faith with
respect to wages, hours, and other terms and conditions
of employment for represented employees. The employ-
er’s bargaining obligation is enforced through Section
8(a)(5) of the Act, which prohibits an employer from
refusing to bargain or from bargaining in bad faith with
its employees’ designated representative. Section 8(a)(5)
further prohibits, with very limited exception, an em-
ployer’s unilateral changes to mandatory subjects of bar-
gaining unless the employer has bargained to impasse
with the union representing the employer’s employees, or
the union has clearly and unmistakably waived its statu-
tory right to bargain about a particular subject.
As the Supreme Court long ago explained in its semi-
nal decision on this point,
[U]nilateral action by an employer without prior dis-
cussion with the union does amount to a refusal to ne-
gotiate about the affected conditions of employment
under negotiation, and must of necessity obstruct bar-
gaining, contrary to the congressional policy. It will of-
ten disclose an unwillingness to agree with the union.
It will rarely be justified by any reason of substance.
NLRB v. Katz, 369 U.S. 736, 747 (1962).12
The Katz unilateral change doctrine was announced in
a case involving an employer’s unilateral changes during
bargaining with a newly certified union for a first con-
tract. The Supreme Court subsequently made clear that
the doctrine “has been extended as well to cases in which

12 See also NLRB v. McClatchy Newspapers, Inc., 964 F.2d 1153,
1162 (D.C. Cir.1992) (Edwards, J., concurring) (“A unilateral change
not only violates the plain requirement that the parties bargain over
‘wages, hours, and other terms and conditions,’ but also injures the
process of collective bargaining itself. ‘Such unilateral action minimiz-
es the influence of organized bargaining. It interferes with the right of
self-organization by emphasizing to the employees that there is no
necessity for a collective bargaining agent.’” (quoting May Dept. Stores
Co. v. NLRB, 326 U.S. 376, 385 (1945)).
an existing agreement has expired and negotiations on a
new one have yet to be completed.” Litton Financial
Printing Division v. NLRB, 501 U.S. 190, 198 (1991).13
Accordingly, “[u]nder Katz, terms and conditions contin-
ue in effect by operation of the NLRA. They are no
longer agreed-upon terms; they are terms imposed by
law, at least so far as there is no unilateral right to change
them.” Id. at 206. This is generally referred to as the
obligation to maintain the status quo for mandatory sub-
jects of bargaining. In the post-contract expiration con-
text, the status quo consists of the terms and conditions
of employment existing on the expiration date of the par-
ties’ collective-bargaining agreement.14
Thus, although terms and conditions of employment
are frequently said to “survive contract expiration,” they
do so not by any lingering force of the contract, but in
order to protect the continuing statutory bargaining duty
that unilateral actions would circumvent. Any other ap-
proach would undermine collective bargaining by mak-
ing it harder for the parties to reach agreement, while
simultaneously undermining the union as the representa-
tive of the unit employees. For this reason, exceptions to
the status quo doctrine are few, and are limited to manda-
tory bargaining subjects that are fundamentally creatures
of contract and involve the surrender of a statutorily pro-
tected bargaining right that is important to the post-
expiration bargaining process. These exceptions are lim-
ited to arbitration, no-strike/no-lockout, and manage-
ment-rights waivers. As we discuss in Section A below,
we find that the common rationale for excepting these
subjects from those that must be maintained after a con-
tract’s expiration is not only consistent with the Katz
unilateral change doctrine, it is essential to the effectua-
tion of the statutory purpose underlying that doctrine.
It is also well established that the status quo that must
be maintained after a contract’s expiration includes ex-
tracontractual terms and conditions of employment that
have become established by past practice. That is, “[a]n
employer’s practices, even if not required by a collective-
bargaining agreement, which are regular and long-
standing, rather than random or intermittent, become
terms and conditions of unit employees’ employment,
which cannot be altered without offering their collective-
bargaining representative notice and an opportunity to
bargain over the proposed change. . . . A past practice

13 Citing, e.g., Laborers Health and Welfare Trust Fund v. Ad-
vanced Lightweight Concrete Co., 484 U.S. 539, 544, fn. 6 (1988).
14 In the initial bargaining context, that status quo consists of terms
and conditions of employment in effect when the employer voluntarily
recognizes the union as its employees’ bargaining representative, or the
terms and conditions existing on the date of the union’s selection by a
voting majority of employees in a Board election.
E.I. DU PONT DE NEMOURS 5
must occur with such regularity and frequency that em-
ployees could reasonably expect the ‘practice’ to contin-
ue or reoccur on a regular and consistent basis.” Sunoco,
Inc., 349 NLRB 240, 244 (2007) (citations omitted).
However, as discussed in Section B below, Katz and
statutory policy viewing unilateral employer actions as
contrary to the general duty to bargain support a narrow
definition of what constitutes a past practice that permits
an employer’s unilateral action in the absence of a bar-
gaining agreement. The focus of that definition is on the
degree of discretion that the employer purports to exer-
cise.
As stated, we find that the Board’s decisions in Couri-
er-Journal, Capitol Ford, and Beverly 2006, are incon-
sistent with the principles we have examined.
A. The Precedent We Overrule Today is Irreconcilable
with Established Law Limiting the Duration of Waivers
Under a Contractual Management-Rights Clause
A management-rights clause is a contractual provision
that authorizes an employer to act unilaterally, in its dis-
cretion, with respect to one or more mandatory subjects
of bargaining. The Board has consistently held that a
management-rights clause does not extend beyond the
expiration of the collective-bargaining agreement em-
bodying it, in the absence of evidence of the parties’ con-
trary intentions. See, e.g., Holiday Inn of Victorville, 284
NLRB 916, 916–917 (1987).15 This is so because, like
arbitration and no-strike clauses, a management-rights
clause involves a consensual surrender of a fundamental
statutory bargaining right. As the Board has recently
explained,
It is true that a few contractually established terms and
conditions of employment--arbitration provisions, no-
strike clauses, and management-rights clauses--do not
survive contract expiration, even though they are man-
datory subjects of bargaining. In agreeing to each of
these terms, however, parties have waived rights that
they otherwise would enjoy in the interest of conclud-
ing a collective-bargaining agreement, and such waiv-
ers are presumed not to survive the contract.
Lincoln Lutheran of Racine, 362 NLRB No. 188, slip op. 4
(2015) (footnotes omitted).16

15 See also Ryder/Ate, Inc., 331 NLRB 889, 889 fn. 1 (2000), enfd.
22 Fed.Appx 3 (D.C. Cir. 2001); University of Pittsburgh Medical
Center, 325 NLRB 443, 443 fn. 2 (1998), enfd. 182 F.3d 904 (3d Cir.
1999); Ironton Publications, 321 NLRB 1048, 1048 (1996); Buck
Creek Coal, Inc., 310 NLRB 1240, 1240 fn. 1 (1993).
16 See also, Southwestern Steel & Supply, Inc. v. NLRB, 806 F.2d
1111, 1114 (D.C. Cir. 1986) (waiver of a statutorily-guaranteed right
during the life of a contract is not a “clear and unmistakable” waiver of
Beverly 2001, 335 NLRB at 636–637, is particularly
instructive as to the integral connection between a man-
agement-rights clause and discretionary unilateral chang-
es authorized by it. In that case, the Board adopted the
judge’s finding that the employer violated Section
8(a)(5) by implementing a number of unilateral changes
in employees’ working conditions following the expira-
tion of the parties’ collective-bargaining agreements.
The Board reasoned that the management-rights clause in
those agreements, which the employer cited as authority
for making the changes, did not survive the contracts’
expiration. Id. at 636. It also rejected the dissent’s ar-
gument that even if the management-rights clause ex-
pired with the contract, the post-expiration unilateral
changes were lawful because the work practices extant
during the contract became terms and conditions of em-
ployment, and thus the employer had not changed the
status quo. The Board explained that such a view “can-
not be correct, for the essence of the management-rights
clause is the union’s waiver of its right to bargain. Once
the clause expires, the waiver expires, and the overriding
statutory obligation to bargain controls.” Id. The Board
further emphasized that “[b]ecause the waiver embodied
in a management-rights clause lasts only until the con-
tract expires, the status quo after contract expiration can-
not include the right to make unilateral changes since
such changes cannot be made in the absence of a waiv-
er.” Id. at 636–637 fn. 7. The Board observed that a
contrary rule would make the expiration of the clause
“meaningless wherever the employer had taken ad-
vantage of the waiver to make changes,” and that defin-
ing the status quo that must be maintained following con-
tract expiration as something so “fluid” necessarily “dis-
courages, rather than promotes, collective bargaining,”
contrary to the aims of the Act. Id. at 637; see also Reg-
ister-Guard, supra, 339 NLRB 353, 356 (because con-
tractual reservation of managerial discretion did not sur-
vive expiration of the contract, absent evidence that the
parties intended it to do so, the employer’s previous im-
plementation of sales incentive programs under such a
contractual reservation did not create a past practice that
privileged the institution of new sales commissions after
the contract expired).17

that right beyond the contract term, citing Metropolitan Edison Co. v.
NLRB, 460 U.S. 693, 708–710 (1983)).
17 The Board also noted that certain earlier cases, including Shell Oil
Co., 149 NLRB 283, 286–287 (1964), and Winn-Dixie Stores, 224
NLRB 1418, 1432–1434 (1976), enfd. in part on other grounds 567
F.2d 1343 (5th Cir. 1978), “could be read to imply to the contrary, [but]
those cases have been overruled sub silentio by . . . more recent cases”
Id. at 636 fn. 6. Despite this, the Sixth Circuit mistakenly suggested a
year after Beverly 2001 that the Shell Oil line of cases remained extant
Board law “standing for the proposition that if an employer has fre-
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Beverly 2001 and Register-Guard make clear that
when a union agrees to a management-rights clause, it
has prospectively waived its right to object to discretion-
ary unilateral changes covered by the clause only for the
duration of the contract containing that clause. Accord-
ingly, those discretionary changes cannot constitute a
past practice that an employer could or should continue
post-expiration without affording the union its full statu-
tory bargaining rights. Nevertheless, in the Courier-
Journal cases, a Board majority broke from this clear
precedent without explanation.
In Courier-Journal I, 342 NLRB at 1094, the majority
found that the employer’s unilateral changes to employ-
ees’ health insurance after expiration of a collective-
bargaining agreement were lawful pursuant to an estab-
lished past practice because, for 10 years, the employer
had regularly made unilateral changes in the costs and
benefits of the employees’ health care program under
waiver provisions in successive contracts and during
prior hiatus periods, without protest from the union.18
The contracts granted the employer the right to modify
the health benefits, so long as any changes were made on
the same basis as for nonrepresented employees. Id. at
1093. Without expressly referring to Beverly 2001,
much less overruling that precedent, the majority essen-
tially adopted the rationale of the dissent in that case,
stating that “we do not pass on the legal issue of whether
a contractual waiver of the right to bargain survives the
expiration of the contract. Our decision is not grounded
in waiver. It is grounded in past practice, and the contin-
uance thereof.” Id. at 1095. As a matter of past practice,
the majority reasoned that the employer’s discretion to

quently engaged in a pattern of unilateral change under the manage-
ment-rights clause during the term of the CBA, then such a pattern of
unilateral change becomes a ‘term and condition of employment,’ and
that a similar unilateral change after the termination of CBA is permis-
sible to maintain the status quo.” Beverly Health and Rehabilitation
Services v. NLRB, 297 F.3d at 481 (6th Cir. 2002). Inasmuch as the
Beverly 2001 Board had expressly rejected this proposition and deemed
supporting precedent to have been overruled in relevant part, the Sixth
Circuit’s discussion of Shell Oil is misplaced. See E.I. du Pont, 682
F.3d at 69, citing Beverly Health, 297 F.3d at 481. Our dissenting
colleague contends that Beverly 2001 overruled Shell Oil and Winn-
Dixie only to the extent that they suggested management rights waivers
survived contract expiration. We note in this regard that Beverly 2001
specifically stated that “[b]ecause the waiver embodied in a manage-
ment-rights clause lasts only until the contract expires, the status quo
after contract expiration cannot include the right to make unilateral
changes since such changes cannot be made in the absence of a waiv-
er.” 335 NLRB at 636 fn. 7, citing its fn. 6 reference to the sub silentio
overruling of those cases. Insofar as necessary to eliminate any uncer-
tainty about the current status of these earlier decisions, we expressly
overrule the Shell Oil line of cases today.
18 The Board’s rationale was applied in Courier-Journal II, 342
NLRB 1148, involving the same respondent, which issued a few days
later.
make changes was limited by its obligation to treat unit
and nonunit employees the same, but even if its discre-
tion was not limited, the union’s failure to object to past
changes privileged the employer to continue making
them under an established past practice, even after con-
tract expiration.
As we discuss in the next section, the Courier-Journal
“past practice” rationale for finding broad discretionary
post-expiration unilateral changes lawful cannot be rec-
onciled with the traditional and longstanding past prac-
tice doctrine. Therefore, despite the Courier-Journal
majority’s protestations to the contrary, the only arguable
source of authority for continuing to exercise the right to
make such changes would be based on waiver and the
union’s prior acquiescence. This approach is patently
mistaken. See Beverly 2001, 335 NLRB at 636–637.
During the contract period, any failure to object by the
union was in accord with the parties’ negotiated agree-
ment and cannot be construed as consent to post-
contractual unilateral changes. Regarding changes made
during prior hiatus periods, the failure-to-object rationale
is contrary to the well-established waiver principle that
“a union’s acquiescence in previous unilateral changes
does not operate as a waiver of its right to bargain over
such changes for all time.” Owens-Corning Fiberglass
Corp., 282 NLRB 609, 609 (1987). Thus, the union’s
acquiescence in the employer’s unilateral changes to
health benefits made during prior out-of-contract hiatus
periods did not establish a waiver of its right to bargain
over the employer’s post-expiration changes that it did
ultimately oppose.
We reject the Courier-Journal approach, however de-
nominated, because it would clearly frustrate collective
bargaining and undermine the union’s bargaining repre-
sentative status, in direct contradiction of the Act’s poli-
cies, as articulated in Katz and Litton.19 Such an ap-
proach would render the expiration of the management-
rights clause meaningless wherever the employer had
acted under its authority to make changes during the con-
tract period. Indeed, an employer that has exercised
broad discretion in making unilateral changes pursuant to
a management-rights provision during the contract term
would have little incentive to bargain and agree on such
proposals if it retains this discretion after the contract
expires.
In sum, we find that the common rationale of all of
these cases cited by the District of Columbia Circuit and

19 The holding in Capitol Ford, that a successor employer could law-
fully make unilateral changes consistent with those made by the prede-
cessor employer during a post-expiration hiatus period, suffers from the
same flaws as Courier-Journal. So, too, does the dicta in Beverly
Health 2006 cited by the court in its remand opinion in this case.
E.I. DU PONT DE NEMOURS 7
the Respondent cannot be reconciled either with funda-
mental Board law limiting broad discretionary employer
actions under management-rights waivers to the duration
of their source contracts, or to the requirement that post-
expiration changes in mandatory terms and conditions of
employment be subject to the full bargaining process
required by the Act.
B. The Courier-Journal and Capitol Ford Decisions are
Incompatible with Well-Established Past
Practice Doctrine
The Board’s past practice doctrine also flows from
Katz. The Supreme Court there held that an employer’s
unilateral change involving a mandatory bargaining sub-
ject, pursuant to a practice established prior to the advent
of the union, violated Section 8(a)(5). The Court reject-
ed the employer’s past practice defense to the unilateral
implementation of merit wage increases despite the “the
fact that the [ ] raises were in line with the company’s
long-standing practice of granting quarterly or semiannu-
al merit reviews—in effect, were a mere continuation of
the status quo.” The Court reached its conclusion be-
cause “the raises [ ] in question were in no sense auto-
matic, but were informed by a large measure of discre-
tion.” 369 U.S. at 746.
Since Katz, the Board and the courts have repeatedly
held that employers may act unilaterally pursuant to an
established practice only if the changes do not involve
the exercise of significant managerial discretion. Pro-
moting stability, this doctrine freezes the status quo to
the greatest extent possible while allowing a narrow ex-
ception for situations where there is a history of predict-
able changes to a discrete term or condition of employ-
ment that would be expected to continue in a nondiscre-
tionary, regular manner. In the latter circumstances, a
so-called dynamic status quo exists in which adherence
to the pattern of change is not only permitted, but re-
quired. For example, applying Katz, the Board held in
State Farm Mutual Auto Insurance Co., 195 NLRB 871,
890 (1972), that an employer did not violate Section
8(a)(5) by unilaterally granting newly represented em-
ployees cost-of-living wage increases inasmuch as they
were “automatic increases [determined by Bureau of
Labor Statistics data] to which the Company was com-
mitted by a longstanding program and which involved no
independent action by the Company.”20

20 See also Kal-Die Casting Corp., 221 NLRB 1068, 1068 fn. 1
(1975) (finding that an employer did not violate the Act by unilaterally
making “routine production and scheduling adjustments” because there
was no evidence that those adjustments varied from the employer’s
established past practice of making similar adjustments, and the union
did not request bargaining in any event).
By contrast, in Oneita Knitting Mills, Inc., 205 NLRB
500 (1973), the Board held that an employer violated
Section 8(a)(5) by unilaterally granting merit wage in-
creases to represented employees, even though it had a
past practice of granting such increases. The Board ex-
plained that if an employer has exercised, and continues
to exercise, discretion in regard to the amount of an an-
nual wage increase, it must first bargain with the union
over the discretionary aspect. Id.21
In the decades since Katz, with the exception of man-
agement rights precedent we overrule here, the Board has
narrowly interpreted when a past practice was sufficient-
ly fixed as to timing and criteria—thereby limiting em-
ployer discretion—as to deem further changes to be a
permissible continuation of the dynamic status quo. In
most cases, an employer’s past practice defense of uni-
lateral action has been rejected because, as in the case of
the wage increases at issue in Katz itself, they “were in
no sense automatic, but were informed by a large meas-
ure of discretion.” 369 U.S. at 746. For example, in
Eugene Iovine, Inc., 328 NLRB at 294–295 (1999), enfd.
1 Fed. Appx. 8 (2d Cir. 2001), the Board held that an
employer’s recurring unilateral reductions in employees’
hours of work were discretionary and therefore required
bargaining with a newly certified union: “there was no
‘reasonable certainty’ as to the timing and criteria for a
reduction in employee hours; rather, the employer’s dis-
cretion to decide whether to reduce employee hours ‘ap-
pear[ed] to be unlimited.’” Accord Adair Standish
Corp., 292 NLRB 890, 890 fn. 1 (1989) (despite past
practice of instituting economic layoffs, employer, be-
cause of newly certified union, could no longer continue
unilaterally to exercise its discretion with respect to
layoffs), enfd. in relevant part 912 F.2d 854 (6th Cir.
1990); see also Aaron Brothers Co. v. NLRB, 661 F.2d
750, 753 (9th Cir. 1981) (the “longstanding practice”
exception suggested in Katz places a heavy burden on the
employer to show an absence of employer discretion in
determining the size or nature of a unilateral employment
change).
Healthcare insurance benefits, like wages and hours of
work, are a mandatory subject of collective bargaining
and, as such, are subject to the same general statutory
principles: an employer generally may not alter them
without bargaining to agreement or to a good-faith im-
passe. Mid-Continent Concrete, 336 NLRB 258, 259
(2001), enfd. 308 F.3d 859 (8th Cir. 2002); United Hos-
pital Medical Center, 317 NLRB 1279, 1281 (1995).

21 See also State Farm Mutual Auto Insurance, above, 195 NLRB at
890 (finding that the employer violated the Act by continuing its prac-
tice of unilaterally granting merit increases that were informed by a
significant degree of discretion).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Compare Luther Manor Nursing Home, 270 NLRB 949,
959 (1984), affd. 772 F.2d 421 (8th Cir. 1985) (no viola-
tion of Section 8(a)(5) where, in accordance with past
practice of automatic change, the employer paid one third
of an insurance premium increase itself and required em-
ployees to pay the remaining two thirds) with Dyna-
tron/Bondo Corp., 323 NLRB 1263, 1265 (1997), enfd.
in relevant part 176 F.3d 1310 (11th Cir. 1999) (increas-
es to employee contributions were unlawful despite em-
ployer’s established practice of passing on premium in-
creases to employees in the 3 years before the union was
certified, because the increases were not shown to be
based on a “fixed percentage” of the total premium and
the employer retained “total discretion” over what em-
ployees were required to contribute).22
Although most of the cases where the Board has con-
sidered an employer’s past practice defense to a unilat-
eral change in health benefits have involved changes
during first contract bargaining with newly certified un-
ions, the Board has also considered and rejected an em-
ployer’s past practice defense where the parties had a
preexisting bargaining relationship. In Caterpillar Inc.,
355 NLRB 521 (2010), enfd. mem. 2011 WL 2444757
(D.C. Cir. 2011), the Board found that an employer’s
unilateral implementation of a generic-first prescription
drugs program violated Section 8(a)(5). The Board re-
jected the employer’s contention that it had a longstand-

22 Compare also Post-Tribune Co., 337 NLRB 1279, 1280
(2002)(employer lawfully unilaterally increased employees’ required
contributions to health care premiums because it had a consistent, es-
tablished past practice of allocating health insurance premiums between
itself and its employees at a fixed ratio); House of the Good Samaritan,
268 NLRB 236 (1983) (employer lawfully passed an insurance premi-
um increase along to employees where the employer followed its writ-
ten policy setting forth the maximum dollar amount it would pay to-
ward employee health insurance); A-V Corp., 209 NLRB 451, 452
(1974) (where the employer’s “consistent practice with regard to in-
creased insurance premium costs . . . had been to allocate a portion of
such costs to its employees on a pro rata share basis,” the employer’s
allocation of a later premium increase in the same manner represented a
continuation of the past practice rather than a unilateral change), with
Maple Grove Health Care Center, 330 NLRB 775, 780 (2000) (reject-
ing employer’s argument that it had no obligation to bargain over a
change in employees’ insurance premiums because it had maintained
the status quo by passing on a portion of the externally imposed insur-
ance premium increase to employees; the purported status quo was
insufficiently certain because the employer failed to show an estab-
lished practice of requiring employees to pay a fixed percentage of the
healthcare insurance premium); Mid-Continent Concrete, 336 NLRB at
268 (rejecting the employer’s argument that it had no obligation to
bargain when it changed insurance plans and benefits because it had a
past practice of maintaining uniformity between the benefits of unit and
nonunit employees); Garrett Flexible Products, Inc., 276 NLRB 704
(1985) (employer violated Sec. 8(a)(5) by unilaterally increasing the
health insurance premium paid by bargaining unit employees where the
employer had exercised substantial discretion in allocating the increases
between the employer and the employees).
ing practice of unilaterally implementing changes to its
prescription drug program, finding that the employer
failed to show any regularity and frequency with respect
to the prior changes and that the employer’s “series of
disparate changes . . . [did] not establish a ‘past practice’
excusing bargaining over future changes.” Id. at 523.
In the Courier-Journal decisions, where the majority
purported to decide the cases exclusively on past practice
grounds, the analysis veered sharply from the well-
established precedent defining a past practice status quo.
In Courier-Journal I, 342 NLRB 1093, the contracts
granted the employer the right to modify the employees’
health insurance coverage so long as any changes were
made on the same basis as for unrepresented employees.
For some 10 years, the employer regularly implemented
changes to employees’ health insurance coverage; these
included increases in employee contributions towards
insurance premiums, modifications to coverage, and
changes in carriers. Id. at 1098. The changes were made
unilaterally for both represented and unrepresented em-
ployees alike, and some changes were implemented dur-
ing a hiatus period between collective-bargaining agree-
ments. Following the expiration of the parties’ most re-
cent collective-bargaining agreements, the employer
made even “more far reaching changes to the healthcare
insurance benefit,” including increases in employee con-
tributions to health care premiums, modifications to the
framework for setting employee contribution levels, in-
troduction of new vision and dental coverage plans, ter-
mination of a bonus program, and a change in the insur-
ance provider. Id. at 1099.
The Courier-Journal majority’s conclusion that the
employer’s ability to make “extensive unilateral chang-
es”23 was sufficiently limited by the requirement that any
changes for unit employees be the same as for unrepre-
sented employees is contrary to the past practice doctrine
developed in accord with Katz. Without explanation,
Courier-Journal found that a recurring pattern of broad
discretionary actions taken pursuant to an expired man-
agement-rights clause permitted unilateral action. The
changes deemed lawful in Courier-Journal were unlike
those made pursuant to a fixed formula in Luther Manor,
supra, 270 NLRB 949. Instead, as in Mid-Continent, 336
NLRB at 268, Dynatron/Bondo, 323 NLRB at 1265, and
Maple Grove Health Care Center, 330 NLRB at 780, the
employer’s previous changes in unit employees’ health
care costs and benefits were not based on reasonably
certain criteria that limited the employer’s discretion.
Rather, the purported past practice effectively involved

23 E.I. du Pont, 682 F.3d at 68.
E.I. DU PONT DE NEMOURS 9
limitless discretion in changes to the employees’ health
insurance benefits.
The Courier-Journal majority also found that the em-
ployer’s discretion to change health benefits was limited
because changes to unit members’ benefits had to be the
same as those for unrepresented employees. 342 NLRB
at 1094. Yet because the employers were free to change
and even entirely eliminate benefits to employees who
are not represented by a union, there are no fixed criteria
limiting that discretion. Such discretion does not estab-
lish a past practice permitting unilateral changes. See
e.g., Larry Geweke Ford, 344 NLRB 628, 632 (2005)
(the employer’s history of providing the same health plan
for all its employees on a company-wide basis did not
exempt it from its bargaining obligation). As dissenting
Member Liebman persuasively explained in Courier-
Journal I, this constituted “no limitation at all”:
[T]he [r]espondent could do exactly as it pleased with
regard to the [unrepresented employees’] coverage, and
therefore, by extension, it could do the same for unit
employees. If dealing with union-represented employ-
ees exactly as it would if they were not represented is a
‘limitation’ on the [r]espondent’s discretion, it is one
that most employers would be happy to accept.
342 NLRB at 1096–1097.
Paradoxically, the Courier-Journal decisions created a
bargaining dichotomy in which an employer would have
much broader latitude to make discretionary unilateral
changes when negotiating for a successor bargaining
agreement than would be permitted, as in Katz, when
bargaining for an initial agreement. There is no rational
basis for this dichotomy, and it cannot be reconciled with
the Supreme Court’s approval in Litton of the Board’s
position that “it is difficult to bargain if, during negotia-
tions, an employer is free to alter the very terms and con-
ditions that are the subject of those negotiations.” 501
U.S. at 198. That position applies with equal force to
initial and successor bargaining.
For all of the above reasons, we conclude that Courier-
Journal cannot be reconciled with longstanding prece-
dent defining a past practice that must be maintained as
part of the status quo under the unilateral change doc-
trine. We therefore overrule it and other decisions to the
extent that they depart from that precedent, including the
holding that treating unit and nonunit employees alike
when making otherwise broad discretionary changes
constitutes a fixed criterion sufficient to establish a past
practice status quo.24

24 The Board’s holding in Capitol Ford was likewise inconsistent
with past practice principles, and must be overruled in relevant part.
VI. APPLICATION TO THIS CASE
During negotiations for successor collective-
bargaining agreements at its Louisville and Edge Moor
facilities, the Respondent unilaterally implemented nu-
merous substantial changes to the Beneflex benefits of
unit employees without bargaining to impasse. The
changes varied widely from year to year, encompassing
both changes to the price and content of benefits as well
as the elimination and addition of plan options within
benefit plans, including the elimination of entire catego-
ries of benefits. Those changes were limited in timing to
the extent that they coincided with the annual open peri-
od for the Beneflex Plans.25 But they were limited in
substance only to the extent of the requirement that the
same changes be made for nonunit employees, which, as
discussed above, we find to be no meaningful limitation
at all.
In addition, the Respondent’s right to exercise broad
discretion in unilaterally changing the benefit plans ex-
isted solely because the Union agreed that the Respond-
ent could make changes during the term of the parties’
collective-bargaining agreement pursuant to the reserva-
tion of rights clause in the Beneflex Plan documents.26
Consistent with precedent we reaffirm today, overruling
cases to the contrary, this provision did not survive the
expiration of the collective-bargaining agreements—and
neither did the employer’s contractual right to make uni-

The Board there reasoned that the successor employer lawfully modi-
fied the unit employees’ productivity bonus program, because the pre-
decessor employer had made similar discretionary changes during the
term of its contract with the union. As in Courier-Journal, there was
no attempt to reconcile this result with the traditional definition of a
cognizable past practice status quo, which emphasizes the absence of,
or at least strict limitations on, the degree of an employer’s discretion to
act unilaterally.
25 The District of Columbia Circuit has itself expressed the view that
fixed timing alone is “a characteristic found insufficient to create a term
or condition of employment” under past practice doctrine. Arc Bridges,
Inc. v. NLRB, 662 F.3d 1235, 1239 (D.C. Cir. 2011), citing Daily News
of Los Angeles v. NLRB, 73 F.3d 406, 412 fn. 3 (D.C.Cir.1996).
26 We reaffirm the prior Board’s findings, for the reasons set forth in
its initial decisions, that the reservation of rights clause in the Beneflex
Plan documents is a management-rights clause. DuPont-Louisville, 355
NLRB at 1086, 1094; DuPont-Edge Moor, 355 NLRB at 1103–1104.
We also reaffirm the prior Board’s findings, for the reasons set forth
in its initial decisions, that the Respondent failed to show that its unilat-
eral changes were privileged under Stone Container Corp., 313 NLRB
336 (1993), or were “covered by” the expired collective-bargaining
agreements. DuPont-Louisville, 355 NLRB at 1086 fn. 8; DuPont-
Edge Moor, 355 NLRB at 1106–1108. In addition, we find that the
Stone Container exception is inapplicable in this case because it applies
only where the parties are negotiating for an initial collective-
bargaining agreement and not to negotiations for successor contracts.
Connecticut Institute for the Blind, Inc., d/b/a Oak Hill, 360 NLRB No.
55, slip op. at 52 (2014). Therefore, we find inapposite the Respond-
ent’s reliance on Brannan Sand and Gravel, 314 NLRB 282 (1994),
and Nabors Alaska Drilling, Inc., 341 NLRB 610 (2004).
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lateral changes permitted by it. Consequently, the Re-
spondent’s wide-ranging and varied changes, made with
no cognizable fixed criteria, did not establish a status quo
under our doctrine that the Respondent was permitted to
continue post-expiration.
Further, the fact that the Union did not object to Bene-
flex changes during the term of the collective-bargaining
agreements is of no consequence. For as long as the con-
tractual management-rights clause remained in effect,
these were permissible discretionary changes. But once
the agreements expired, the Union’s past silence surely
did not constitute a waiver of its right to oppose similar
changes. The Respondent moreover has failed to show
that the changes it made to the Beneflex Plan after the
contracts expired were made according to fixed criteria.27
Instead, the evidence shows that they clearly fell outside
the limited range of repeated changes made with little or
no discretion that, with the exception of cases we over-
rule today, the Board has recognized as a statutory status
quo that may be maintained in the absence of a collec-
tive-bargaining agreement.28

27 When an employer asserts a past practice as a defense to a charge
that it has refused to bargain, the employer carries the burden of prov-
ing the existence of the past practice. See, e.g., Caterpillar, Inc., 355
NLRB at 523; see also Eugene Iovine, Inc., 328 NLRB at 294 fn. 2.
28 The Respondent asserts that The Finley Hospital, 359 NLRB 156
(2012), supports its view that the post-expiration status quo included
the Respondent’s right to make annual changes to the Beneflex Plan.
The Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct.
2550 (2014), rendered the Board’s decision in Finley Hospital invalid.
However, in Finley Hospital, 362 NLRB No. 102 (2015), reversed in
part __ F.3d __, 2016 WL 3511487 (8th Cir. 2016), the Board affirmed
the judge’s finding that the employer violated Sec. 8(a)(5) by unilater-
ally discontinuing annual raises required under the collective-
bargaining agreement when the agreement expired and essentially
adopted its earlier rationale. Nevertheless, we find that Finley Hospital
is inapposite; it did not involve the Board’s past practice doctrine, nor
did the employer in that case raise such a defense. In Finley, a contrac-
tual provision in the parties’ collective-bargaining agreement stated in
relevant part that “For the duration of this Agreement, the Hospital will
adjust the pay of Nurses on his/her anniversary date. Such pay increas-
es for Nurses not on probation, during the term of this Agreement, will
be three (3) percent . . .” 362 NLRB No. 102, slip op. at 2. During the
term of the contract, the employer had implemented wage increases
pursuant to this provision that provided for annual increases in speci-
fied amounts. The Board found that the employer violated Sec. 8(a)(5)
by unilaterally discontinuing the annual 3-percent pay raises provided
in agreement after it expired. Id., slip op. at 3–5. The Board reasoned
that employer had a duty to continue to pay the 3-percent pay increases
following the contract’s expiration consistent with its statutory duty to
maintain the status quo. Unlike in this case, the wage increase provi-
sion in the contract in Finley was not a management-rights provision,
but rather was a particular term and condition of employment—a dis-
crete and clearly defined wage increase—that the employer was re-
quired to continue post-expiration. Such a defined wage increase is
vastly different from the ad hoc discretionary changes in benefits that
the Respondent here contends it is privileged to make as part of the
purported status quo.
Following the expiration of the parties’ collective-
bargaining agreements, therefore, the Respondent had the
statutory obligation to adhere to the terms and conditions
of employment that existed on the expiration date at each
facility until it bargained to agreement or reached a good
faith impasse in overall bargaining for a new agreement.
When the collective-bargaining agreements expired, the
Beneflex Plan benefits in effect on the expiration dates
became fixed as the status quo subject to this statutory
duty to bargain.29
By unilaterally implementing further post-expiration
changes in the absence of a bargaining impasse, the Re-
spondent breached its obligation to maintain that status
quo and thereby violated Section 8(a)(5) and (1) of the
Act.
VII. RESPONSE TO DISSENT
Our dissenting colleague makes three primary conten-
tions. First, he asserts that our decision is based on a
new definition of what constitutes a change under the
Supreme Court’s decision in Katz and that this allegedly
new definition cannot be reconciled with Katz, the Act,
or what he deems to be fundamental common sense.
Second, he contends that our decision is based on a nar-
rative that falsely paints the Courier-Journal cases, ra-
ther than Beverly 2001 and Register-Guard, as unex-
plained departures from long-established Board prece-
dent. Third, he asserts that our decision today has no
rational policy basis and that it will both ill serve collec-
tive-bargaining and undermine industrial peace. Obvi-
ously we disagree, and for good reason.
To begin, we believe that the District of Columbia Cir-
cuit was fully cognizant of Katz and its bearing here
when it remanded this case with instructions that the
Board should “conform to its precedent in Capitol Ford
and in the 2006 iteration of Beverly Health and Rehabili-
tation Services or explain its return to the rule it followed
in its earlier decisions [in Beverly 2001 and Register-
Guard].” 682 F.3d 65. These instructions leave open the
issue whether those earlier Board decisions are in accord

29 The Respondent maintains that requiring it to maintain the Bene-
flex Plan as it existed on the contract’s expiration dates “defeats any
notion of status quo.” On the contrary, it is well-settled Board law that
the status quo for unit employees as of the expiration of the contract is
whatever health coverage they had in effect at the expiration of the
agreement. See Remington Sheraton Anchorage, 362 NLRB No. 123,
slip op. at 5 (2015) (employer violated Sec. 8(a)(5) by instituting a new
medical insurance plan for its employees, and by ceasing to make pay-
ments to the medical insurance carrier under the plan as provided for in
the expired collective-bargaining agreement); United Hospital Medical
Center, 317 NLRB 1279 (1995) (employer violated the Act when it
made certain changes in health benefits during negotiations for a suc-
cessor contract).
E.I. DU PONT DE NEMOURS 11
with Katz and the Act as a matter of law if the Board
chose to overrule the more recent conflicting precedent.
Further, we cannot accept our dissenting colleague’s
assertion that when examining whether an employer’s
unilateral action constitutes a “change” under Katz, “the
only relevant factual question is whether the employer’s
actions are similar in kind and degree to what the em-
ployer did in the past.” Under the dissent’s view, proof
of a prolonged series of totally discretionary and varied
changes in a particular term of employment, unfixed as
to timing and criteria, would permit a continuation of this
putative past practice until such time as the employer
agreed in negotiations to limit this practice. And apply-
ing that view in this case, where the only limit on the
Respondent’s discretion to change union employee
health benefits was that the changes be the same as it
imposed on unrepresented employees, the Respondent
would be free to significantly diminish or even complete-
ly eliminate the benefit so long as it did so for its unrep-
resented employees. We cannot discern how an analysis
that permits such unbridled discretion can be reconciled
with the reasoning of Katz or the Court’s holding there
that the employer made unlawful unilateral changes in
wages that were not in line with prior automatic wage
increases but were instead “informed by a large measure
of discretion.” 369 U.S. at 746 (emphasis added). In-
deed, apart from precedent set in the management-rights
cases that we overrule today, there seems to be no prece-
dent to support that view.30 In fact, as set forth previous-
ly, there is substantial contrary precedent that the dissent

30 Other than the Courier Journal cases, Capitol Ford, and Beverly
2006, the dissent primarily relies on Shell Oil Co., 149 NLRB 283
(1964), Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB
1574 (1965), and Winn-Dixie Stores, Inc., 224 NLRB 1418 (1976),
enfd. in part on other grounds 567 F.2d 1343 (5th Cir. 1978). Notably,
none of these cases was cited as supporting precedent in the Courier-
Journal decisions, and for good reason. As previously discussed, Shell
Oil and Winn-Dixie were described in Beverly 2001 as having been
overruled by subsequent precedent. 335 NLRB at 636 fns. 6 & 7.
Westinghouse was a case where the employer “had unilaterally engaged
in the practice of subcontracting for a substantial period of time and the
union employees had never performed the work which was subcon-
tracted.” Leeds & Northrup Co. v NLRB, 391 F.2d 874, 879 (3d Cir.
1968). Westinghouse did not involve any management-rights clause
and the decision does not indicate that the past practice of subcontract-
ing, while extensive, lacked fixed criteria. In subsequently distinguish-
ing Westinghouse, the Board has emphasized that the subcontracting at
issue there involved work not performed by unit employees and there-
fore had no direct adverse impact on them. University of Pittsburgh
Medical Center, 325 NLRB 443, at 443 fn. 4 (majority opinion) and
444 fn. 2 (concurring opinion)) (1998). See also, e.g., General Electric
Co., 264 NLRB 306, at 308–309 (1982).
Bath Iron Works Corp., 302 NLRB 898, 901 (1991) and Trading
Port, Inc., 224 NLRB 980, 983–984 (1976), cited in the dissent for the
proposition that changes must be “material, substantial, or significant,”
do not involve an application of the Board’s past practice doctrine.
neglects and that clearly supports our view of Katz and
the appropriate definition of change subject to the cus-
tomary statutory obligation of advance bargaining.
As to our dissenting colleague’s assertion that our in-
terpretation of when employer changes require advance
bargaining “defies common sense”—because it prevents
an employer from doing “precisely what it has done in
the past,” or from taking actions “identical to what the
employer did before”—we need simply refer to the facts
of this case. The record clearly establishes that, although
the Respondent has established a pattern of making an-
nual changes to the Beneflex Plan, it has not established
a pattern of making anything approaching regularly re-
curring similar changes on those occasions. As previous-
ly described, some Plan changes were made on a recur-
ring basis and some of them were one-time events; some
involved the establishment of entirely new benefits, and
some involved the complete elimination of existing bene-
fits. By the Respondent’s own admission, while the tim-
ing was fixed, there were no fixed criteria for the annual
changes; the sole alleged criterion, that any changes ap-
ply to unit and nonunit employees alike, does not deter-
mine the nature or amount of Plan changes in any appar-
ent way, and the Respondent identified none. In our
view, it defies common sense to assert that employees
would reasonably perceive that there was an established
past practice as to any element of the Beneflex Plan or
understand what to expect on the occasion of annual re-
visions to it. As stated in Katz, “[t]here simply is no way
in such case for a union to know whether or not there has
been a substantial departure from past practice, and
therefore the union may properly insist” on bargaining in
advance of change. 369 U.S. at 746.
This brings us to the dissent’s second principal conten-
tion—that we have misrepresented the history of relevant
precedent. Our colleague asserts that the precedent set in
Beverly 2001 and Register-Guard represented a brief and
mistaken departure from longstanding precedent permit-
ting unilateral action in the circumstances presented here.
We do not dispute that both before and after those cases
there have been Board decisions holding that employers
lawfully adhered to a past practice of broad discretionary
changes established pursuant to a contractual manage-
ment-rights waiver. What we contend here is that those
decisions are in conflict with the longstanding precedent
defining change and past practice in every other bargain-
ing context, whether for initial or successor agreements.
They are in conflict as well as with the equally
longstanding precedent limiting management-rights
clauses to their contractual term. (As previously noted,
the dissent does not acknowledge this precedent.) Bever-
ly 2001 and Register-Guard corrected this conflict, creat-
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing a single standard for all collective-bargaining negoti-
ations. Without any mention of those two cases, much
less providing a rational explanation for departing from
their holdings, the Courier-Journal decisions effectively
reinstated a different standard for defining what consti-
tutes a change in the management-rights context. But
whatever might be said about the history of Board doc-
trine in this area, our decision today makes a clear and
carefully considered choice between different lines of
precedent—as the District of Columbia Circuit has di-
rected us to do.
Finally, we refute our dissenting colleague’s conten-
tion that our holding in this case lacks a rational basis
and will disrupt the bargaining process. To reiterate, our
decision is well grounded in the Act’s fundamental poli-
cy to promote the practice of collective bargaining and
longstanding precedent implementing that policy. Fur-
ther, the dissent both exaggerates and distorts the effect
that our decision will have on parties’ collective bargain-
ing. Contrary to our dissenting colleague, we do not hold
that all past practices are erased whenever a contract ex-
pires. We hold only that an employer cannot continue a
practice of making the same discretionary unilateral
changes, not fixed as to timing and criteria, that it was
permitted to make pursuant to a management rights
clause.31 Thus, we impose no great new burden on em-
ployers or on the bargaining process generally. First,
identifying the status quo is not difficult and does not
involve the strained “drilling-down” scenario set forth in
the dissent. The status quo is whatever employees’ con-
crete terms and conditions of employment are—on the
ground, so to speak—when the contract expires. That is
the baseline from which the parties bargain. Thus, if a
management-rights provision involves healthcare bene-
fits, the benefits in effect at contract expiration—
regardless of whether they have been established unilat-
erally and periodically changed at the employer’s discre-
tion up to that moment—must be maintained. Second,
employers who wish to be able to continue making dis-
cretionary unilateral changes post-expiration can bargain
for contract language in the successor agreement that
clearly and unmistakably gives them that right. This
obligation to bargain over employee terms and condi-
tions of employment is a function of the Act, not a
Board-imposed burden. Our decision adheres to a fun-
damental principle that, with very limited exceptions,

31 Because the facts before us involve the legality of broad and var-
ied discretionary changes by the Respondent, we need not address the
issue whether an employer could continue post-expiration a practice of
automatic change based on fixed timing and criteria, if that practice was
established pursuant to a management-rights clause,
bargaining on mandatory subjects should be promoted,
not excused.
Indeed, it is the dissenting position that threatens the
bargaining process. It is difficult to imagine anything
more disruptive to the collective-bargaining process than
an employer’s exercise of its broad discretion to unilater-
ally change—or even eliminate—a major term and con-
dition of employment, such as health insurance, which
may have a profound effect on the lives of individual
employees and their families. In Katz, the Court stated,
“[u]nilateral action by an employer without prior discus-
sion with the union . . . must of necessity obstruct bar-
gaining, contrary to congressional policy.” 369 U.S. at
747. Further, it would discourage unions from agreeing
to give employers any rights to make unilateral changes
during a contract term for fear that they may never be
able to limit the scope of change exercised in subsequent
contract negotiations. Because contractual grants of
managerial discretion can be an important tool in ad-
dressing mid-term issues, a position that discourages
agreement to management-rights provisions would sig-
nificantly impair collective bargaining. More important,
permitting an employer to continue to unilaterally make
widespread changes to employee terms of employment
during negotiations for a successor collective-bargaining
agreement would have a deleterious effect on the bar-
gaining process, by forcing unions to bargain to regain
benefits lost to post-expiration unilateral changes.32 It
would also undermine the union’s stature in the eyes of
the employees they represent, signaling that the union is
helpless to prevent an employer from acting on its own.
In short, permitting effectively unlimited employer dis-
cretion to change important terms and conditions of em-
ployment—without the consent of the union and while
no contract is in place—is a recipe for precisely the sort
of disruptive labor disputes the Act is intended to pre-
vent.
VIII. CONCLUSION
In sum, we affirm our previous findings in both deci-
sions that the Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally changing the terms of the
Beneflex Plan at a time when the parties were negotiat-
ing for a collective-bargaining agreement and were not at
impasse. In response to the court’s remand directions,
we overrule the Courier Journal decisions and Capitol

32 In addition, at the bargaining table, the extant set of terms and
conditions of employment subject to bargaining will have changed,
making waste of negotiations and preparations based on those former
terms and conditions. The union confronted with these changes will
necessarily have to review them and adjust its proposals accordingly, in
some instances having now to bargain to regain benefits that have
preemptively been eliminated.
E.I. DU PONT DE NEMOURS 13
Ford, and we disavow dicta in Beverly Health 2006 to
the extent that these cases conflict with our rationale here
and departed from well-established statutory bargaining
principles. Our duty as a Board is to fulfill the Act’s
stated purpose of encouraging collective bargaining.
Decisions endorsing an employer’s right to make broad
discretionary unilateral changes in represented employ-
ees’ terms and conditions of employment are antithetical
to that purpose. As the Supreme Court observed in Katz,
such unilateral action by an employer “will rarely be
justified by any reason of substance.” 369 U.S. at 747.
No such reason presents itself in the circumstances of
this case.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we find it appropriate to apply
our decision today retroactively. We find no manifest
injustice in so doing, as our analysis is consistent with
longstanding precedent and well-established principles.
Therefore, we shall order the Respondent to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, having found that the Respondent has vi-
olated Section 8(a)(5) and (1) of the Act by unilaterally
changing the terms of the employees’ benefit plan during
periods when the parties were engaged in negotiations
for a collective-bargaining agreement and had not
reached impasse, we shall require the Respondent to
make whole the unit employees and former unit employ-
ees for any loss of benefits they suffered as a result of the
Respondent’s unlawful changes to their benefits. Such
amounts shall be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010).33
Further, in accordance with Don Chavas, LLC, d/b/a
Tortillas Don Chavas, 361 NLRB No. 10 (2014), and
AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016), the Respondent shall compensate employees for
the adverse tax consequences, if any, of receiving lump-
sum backpay awards and file a report with the Regional
Directors of Regions 4 and 9 allocating the backpay

33 We will allow the Respondent to litigate in compliance whether it
would be impossible or unduly or unfairly burdensome to restore the
unit employees’ benefits to the terms that existed prior to the unlawful
unilateral changes. See Larry Geweke Ford, 344 NLRB 628, 629–630
(2005) (employer permitted to litigate in compliance whether it would
be unduly burdensome to restore the health insurance coverage in effect
prior to the unilateral change).
awards to the appropriate calendar years for each em-
ployee.
Finally, we shall modify the prior Board Orders to
provide for notice-posting in accord with J. Picini Floor-
ing, 356 NLRB 11 (2010), and, due to the length of time
since the violations, we additionally shall order notice
mailing to reach employees who otherwise would not see
the notices or learn of the violations. We have substitut-
ed new notices to conform to the Orders as modified and
in accordance with Durham School Services, 360 NLRB
No. 85 (2014).
ORDER
A. The National Labor Relations Board reaffirms its
original Order, reported at 355 NLRB 1084 (2010), as
modified and set forth in full below, and orders that the
Respondent, E.I. du Pont de Nemours, Louisville Works,
Louisville, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
Paper, Allied-Industrial, Chemical, and Energy Workers
International Union and its Local 5-2002 (the Union) by
making unilateral changes to the benefits of unit employ-
ees during periods when the parties are engaged in nego-
tiations for a collective-bargaining agreement and have
not reached impasse.
The unit is:
All employees employed by [the Respondent] at its
Louisville Works, Louisville, Kentucky, including
powerhouse and refrigeration plant employees, chief
operators, shift leaders, fire department employees, caf-
eteria employees, and counter attendants, but excluding
all office clerical employees, chemical supervisors,
technical engineers, assistant technical engineers,
draftsmen, chemists, nurses and hospital technicians,
general foremen, foremen, fire chief, guards, and all
other supervisors and professional employees as de-
fined in the Act.
(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) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the above-described unit.
(b) Upon request of the Union, restore the unit em-
ployees’ benefits under the Beneflex package of benefit
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
(c) Make all affected employees whole for any losses
that they may have suffered as a result of the unilateral
implemented changes in benefits in the manner set forth
in the remedy section of the decision.
(d) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director of Region 9,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(e) 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 rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amounts due under the terms of
this Order.
(f) Within 14 days after service by the Region, post at
its Louisville, Kentucky, facility copies of the attached
notice marked “Appendix A.”34 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 and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In addition to
physical posting of paper notices, notices shall be dis-
tributed 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. Further, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees at
any time since January 1, 2004.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-

34 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.
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
B. The National Labor Relations Board reaffirms its
original Order, reported at 355 NLRB 1096 (2010), as
modified and set forth in full below, and orders that the
Respondent, E.I. du Pont de Nemours and Company,
Edge Moor, Delaware, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the
United Steel, Paper and Forestry, Rubber, Manufactur-
ing, Energy, Allied Industrial and Service Workers Inter-
national Union (U.S.W.), and its Local 4-786 (formerly
Paper, Allied-Industrial, Chemical and Energy Workers
International Union (PACE) and its Local 2-786) (the
Union) by making unilateral changes to the benefits of
unit employees during periods when the parties are en-
gaged in negotiations for a collective-bargaining agree-
ment and have not reached impasse.
The unit is:
All employees of the Edge Moor Plant with the excep-
tion of the Administrative Secretary to the Plant Man-
ager, Human Resources Assistant, Technologists
(Training, Planning, DCS), Work Leader, Nurses, sala-
ry role employees exempt under the Fair Labor Stand-
ards Act, and supervisory employees with the authority
to hire, promote, discharge, discipline or otherwise ef-
fect changes in the status of employees or effectively
recommend such action.
(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) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the above-described unit.
(b) Upon 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,
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.
(c) Make all affected employees whole for any losses
that they may have suffered as a result of the unilateral
implemented changes in benefits in the manner set forth
in the remedy section of the decision.
E.I. DU PONT DE NEMOURS 15
(d) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director of Region 4,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(e) 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 rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amounts due under the terms of
this Order.
(f) Within 14 days after service by the Region, post at
its Edge Moor, Delaware facility copies of the attached
notice marked “Appendix B.”35 Copies of the notice, on
forms provided by the Regional Director for Region 4,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In addition to
physical posting of paper notices, notices shall be dis-
tributed 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. Further, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees at
any time since January 1, 2005.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 4 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 26, 2016
______________________________________
Mark Gaston Pearce, Chairman

35 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.
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
Former Board Chairman John Fanning once said that
“one factor every case has in common . . . is the presence
of at least two people who see things completely differ-
ent.”1 This case involves more than two people who see
things different. Competing views exist between the
parties, between the Board and the court of appeals
(which remanded this case back to the Board following
an earlier Board ruling), and among the members of the
National Labor Relations Board (NLRB or Board).
My view of this case is simple, and it consists of two
parts: (1) in 1962, the Supreme Court decided NLRB v.
Katz,2 which held that an employer must give the union
notice and the opportunity for bargaining before making
a “change” in employment matters, and the Court held
that bargaining is not required before taking actions that
are not a “change”; and (2) actions constitute a “change”
if they materially differ from what has occurred in the
past.
My colleagues disagree with me on part 2. When
evaluating whether new actions constitute a “change,”
my colleagues do not just compare the new actions to the
past actions. Instead, they look at whether other things
have changed—specifically, whether a collective-
bargaining agreement (CBA) previously existed, whether
the prior CBAs contained language conferring a man-
agement right to take the actions in question, and wheth-
er a new CBA exists containing the same contract lan-

1 John Fanning, The National Labor Relations Act: Its Past and Its
Future, in William Dolson and Kent Lollis, eds., First Annual Labor
And Employment Law Institute 59-70 (1954) (emphasis added), quoted
in Matthew M. Bodah, Congress and the National Labor Relations
Board: A Review of the Recent Past, 22 J. Lab. Res. 699, 713 (Fall
2001). Former Chairman Fanning became a Board member on Decem-
ber 20, 1957 and remained on the Board until December 16, 1982. See
http://www.nlrb.gov/who-we-are/board/board-members-1935 (last
viewed August 15, 2016).
2 369 U.S. 736 (1962). Obviously, the Board is bound by our stat-
ute, which requires bargaining in Sections 8(a)(5) and 8(b)(3), and the
Board is bound by Supreme Court decisions, which include NLRB v.
Katz, where the Court held that any “change” from the status quo must
be preceded by reasonable notice to the union and the opportunity for
bargaining, but these requirements do not apply if there has been no
“change.”
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
guage. If not, the employer’s new actions constitute a
“change” even though they are identical to what the em-
ployer did before.
In effect, my colleagues create the labor law equivalent
of the “neuralyzer” from the Men in Black movies:
whenever a CBA expires, past practices are erased and
everything subsequently done by the employer consti-
tutes a “change” that requires notice and the opportunity
for bargaining before it can be implemented.3
Take, for example, an employer that has always paint-
ed factory walls blue every summer and green every win-
ter. When doing this painting, the employer exercised
discretion: it varied the precise shade of blue and green,
and it also varied the precise time when the painting
would be done. Summer approaches. If the employer
again paints the factory walls blue, will that constitute a
“change”? In my view, because this is what the employ-
er has always done, it is not a “change” for the employer
to do the same thing again.
Here is how my colleagues would analyze it. Summer
approaches, and with it, the time to paint the factory
walls blue. Will this constitute a “change”? To answer
that question, the parties must look at whether CBAs
existed previously during all or some of the past factory-
wall-painting. If CBAs existed previously, parties must
then determine whether those CBAs contained language
conferring on management the right to paint the walls as
described above, and whether a new CBA containing the
same language exists now. If no CBA exists now, or if
the CBA does not contain the same language conferring
a management right to paint the walls, then everything
the employer did in the past is treated like it never hap-
pened. Therefore, even though the employer does what
it always did (paints the walls blue every summer), my
colleagues will find this constitutes a unilateral “change,”
which means the employer will have violated our statute,
and to avoid violating the Act, the employer must first
give the union notice and the opportunity for bargaining.4
In a separate part of their holding, my colleagues also

3 The Men in Black movies involve secret agents, played by Tommy
Lee Jones and Will Smith, among others, who protect the human race
from extraterrestrial aliens who disguise themselves on earth. Whenev-
er the agents destroy or apprehend an alien in the presence of human
civilians, the agents use a “neuralyzer” to erase the civilian’s memory
of the event. See Wikipedia, Men in Black
(https://en.wikipedia.org/wiki/Men_in_Black_(franchise)) (last viewed
August 15, 2016); id., Neuralyzer (https://en.wikipedia.
org/wiki/Neuralyzer) (last viewed August 15, 2016).
4 I have used the painting of factory walls as an example to illustrate
the different definitions of “change” that my colleagues and I apply.
However, I do not reach or pass on whether the color of factory walls is
a sufficiently substantial term or condition of employment to require
bargaining under Sec. 8(a)(5) before this can be done, assuming that it
constitutes a “change” for purposes of Katz.
decide that, whenever the employer exercises any “dis-
cretion” (in my illustration, for example, the employer
always determined the shade of blue or green as well as
the exact time when the painting would occur), taking
precisely the same action would always constitute a
“change” because the employer exercised “discretion.”
Of course, employers do not just paint walls. They
take all kinds of actions, including many that affect wag-
es, hours, benefits and other employment terms. Again,
the Supreme Court held in Katz that employers can law-
fully take these actions without bargaining if doing so
does not constitute a “change.” According to my col-
leagues, however, if a past practice developed under con-
tractual management right’s language, the expiration of a
CBA means that every employer action taken thereafter
constitutes a “change,” even though the employer merely
continues doing what it has done before.
I believe this outcome is wrong because it contradicts
the Supreme Court’s decision in Katz and defies common
sense. Moreover, I believe the majority’s approach will
produce significant labor relations instability at a time
when employers and unions already face serious chal-
lenges attempting to negotiate successor collective-
bargaining agreements. Three considerations are im-
portant to keep in mind here.
First, unions and employers face enormous challenges
in contract negotiations: prioritizing issues, reconciling
divergent positions, preparing and responding to infor-
mation requests, and managing the bargaining process.
My colleagues needlessly add to these challenges by cre-
ating a new Board-imposed duty for parties to negotiate
regarding actions that represent a continuation of what
the employer has done before.
Second, when no CBA exists, and when parties at-
tempt to comply with this new Board-imposed bargain-
ing obligation (which, again, requires bargaining over
actions that merely continue what the employer has done
before), the employer’s obligation is not merely to nego-
tiate to a single-issue impasse or agreement regarding the
particular action that the employer has announced (e.g.,
painting the walls blue, to use my earlier example). Ra-
ther, if no CBA exists, the employer must bargain to
agreement or overall impasse regarding all mandatory
bargaining subjects that are under negotiation before the
employer can take action regarding any issue.5 This type

5 Bottom Line Enterprises, 302 NLRB 373, 374 (1991) (“[A]n em-
ployer’s obligation . . . encompasses a duty to refrain from implementa-
tion at all, unless and until an overall impasse has been reached on
bargaining for the agreement as a whole.”), enfd. mem. 15 F.3d 1087
(9th Cir. 1994); RBE Electronics of S.D., Inc., 320 NLRB 80 (1995)
(same). Although Bottom Line and RBE Electronics are well estab-
lished, I do not pass on whether these decisions were correctly decided.
E.I. DU PONT DE NEMOURS 17
of Board-imposed paralysis—preventing employers from
doing precisely what they have done in the past until
everything is resolved in pending contract negotiations—
will poorly serve employees, unions and employers alike.
This is contrary to Katz and to the Board’s obligation to
foster stable labor relations,6 and it was clearly not in-
tended by Congress. As the Supreme Court stated in
First National Maintenance Corp. v. NLRB,7 “in estab-
lishing what issues must be submitted to the process of
bargaining, Congress had no expectation that the elected
union representative would become an equal partner in
the running of the business enterprise in which the un-
ion’s members are employed.”8
Third, even though Katz affords employers the right to
take unilateral actions consistent with past practice, em-
ployers still have an obligation to bargain with respect to
all mandatory bargaining subjects—including actions the
employer has the right to take unilaterally—whenever
the union requests such bargaining. The Act imposes
two types of bargaining obligations upon employers:
(1) the Katz duty to refrain from making a unilateral
“change” in any employment term constituting a manda-
tory bargaining subject, which entails an evaluation of
past practice to determine whether a “change” would
occur if the employer took the contemplated action; and
(2) the duty to engage in bargaining upon the union’s
request over all mandatory bargaining subjects.9 Exist-
ing law makes it clear that this duty to bargain upon re-
quest is not affected by an employer’s past practice.10 In
my “painting-the-walls-blue” illustration, for example, I
believe the employer has a unilateral right to paint the
walls blue this summer (because doing so would not be a
“change”); but the employer is still required to engage in
bargaining over this subject—regardless of any past
practice—if the union requests such bargaining.11
Another difference in the instant case concerns how
my colleagues describe the development of Board case

6 One of the Board’s primary responsibilities under the Act is to fos-
ter labor relations stability. Colgate-Palmolive-Peet Co. v. NLRB, 338
U.S. 355, 362–363 (1949) (“To achieve stability of labor relations was
the primary objective of Congress in enacting the National Labor Rela-
tions Act.”); NLRB v. Appleton Elec. Co., 296 F.2d 202, 206 (7th Cir.
1961) (A “basic policy of the Act [is] to achieve stability of labor rela-
tions.”).
7 452 U.S. 666 (1981).
8 452 U.S. at 676 (emphasis added).
9 See fn. 22, infra and accompanying text.
10 For more detail regarding the difference between the duty to bar-
gain upon request and the Katz duty to refrain from unilaterally chang-
ing a term or condition of employment—and the fact that an employ-
er’s past practice leaves the former duty undiminished—see fns. 23, 35
& 39, infra.
11 Although the duty to engage in bargaining upon request is undi-
minished by the existence of a past practice, there are some potential
exceptions that can affect this duty. See fn. 23, infra.
law. They construct a narrative that starts by describing
a time when the Board properly applied the law, as fol-
lows: (a) if employer actions occurred during a CBA’s
term, these were permitted only because of a contractual
waiver of bargaining rights (usually pursuant to the man-
agement-rights clause); (b) if the employer took the same
(or similar) actions when no CBA was in effect, the
Board supposedly applied a “traditional and longstanding
past practice doctrine”12 under which the employer’s new
actions constituted a “change” even if they were identical
to what the employer did in the past. Under my col-
leagues’ narrative, this utopian period when the Board
properly applied the law was reflected primarily in two
cases—Beverly Health & Rehabilitation Services (Bever-
ly I),13 decided in 2001, and Register-Guard,14 decided in
2003.
The villains in my colleagues’ story consist of two
Board cases decided in 2004, which I will refer to as
Courier-Journal I and Courier-Journal II.15 My col-
leagues state that the Courier-Journal cases were “unex-
plained departures from well-established . . . legal prin-
ciples” and “veered sharply from the well-established
precedent defining a past practice status quo.”16 Accord-
ing to my colleagues, the Courier-Journal cases “cannot
be reconciled with the traditional and longstanding past
practice doctrine”17 (as established in Beverly I and Reg-
ister Guard). Therefore, in today’s decision, my col-
leagues purport to “return to the rule followed in our ear-
lier cases,”18 thereby restoring the law to its proper state
and where it has always been (excluding the traitorous
Courier-Journal cases and their accursed progeny, Capi-
tol Ford and Beverly II).
My colleagues’ narrative has two problems. First, the
story is not true. My colleagues’ narrative does not ac-
count for an earlier decades-long period during which the
Board—consistent with the Courier-Journal cases19—
similarly held that employer actions were not a “change”
that required bargaining under Katz if they were con-
sistent with past practice, regardless of whether or when

12 Majority opinion, slip op. at 6.
13 335 NLRB 635 (2001), enfd. in relevant part 317 F.3d 316 (D.C.
Cir. 2003).
14 339 NLRB 353 (2003).
15 342 NLRB 1093 (2004) (Courier-Journal I), and 342 NLRB 1148
(2004) (Courier-Journal II). My colleagues pass equally harsh judg-
ment on similar Board decisions in Capitol Ford, 343 NLRB 1058
(2004), and Beverly Health & Rehabilitation Services, Inc., 346 NLRB
1319 (2006) (Beverly II).
16 Majority opinion, slip op. at 8.
17 Id., slip op. at 6.
18 Id., slip op. at 3.
19 Supra fn. 15
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a CBA was in effect.20 In other words, today’s decision
is not supported by any “traditional and longstanding
past practice doctrine” as described by my colleagues.
Rather, the Board’s “traditional and longstanding” Board
case law contradicts today’s decision. At most, the
Board applied Beverly I and Register-Guard (the two
cases relied upon by my colleagues)21 during a short 3-
year period, which was preceded and followed by nu-
merous Board cases that squarely rejected the reasoning
embraced by my colleagues today. This can hardly be
described as a story about a righteous past, a fall from
grace, and a restoration of righteousness.
There is a second and more fundamental problem with
my colleagues’ narrative. This case is not controlled by
Board law. It is controlled by the Supreme Court’s deci-
sion in Katz, which interpreted our statute, neither of
which can be overruled or changed by my colleagues.
In the remainder of this opinion, I resist the temptation
to create a lengthy counter-narrative that replaces the
story recounted by my colleagues. Rather, as noted
above, this is a simple case: the Board is bound by our
statute, and we must adhere to Supreme Court decisions,
including the Supreme Court’s decision in Katz. There,
the Supreme Court held that an employer must provide
prior notice and the opportunity for bargaining before it
implements a “change,” and an employer may lawfully
take unilateral actions if they are not a “change.” Most
people understand what “change” means, and I believe
this common-sense understanding is what the Supreme
Court in Katz embraced: when an employer takes action
consistent with what it did before, this is not a “change.”
In my view, it does not matter whether or what type of
CBA may exist, or may have existed, when evaluating
whether particular actions constitute a “change.” My
colleagues’ view to the contrary improperly confuses the
Board’s treatment of contractual waivers of the right to
bargain—which depend on the existence of a CBA—and
what constitutes a “change” for purposes of Katz. Equal-
ly incorrect, in my view, is my colleagues’ finding that
every employer action constitutes a “change” that re-
quires bargaining, even if it is identical to what the em-
ployer has always done, if the action involves any em-
ployer “discretion.” This aspect of today’s decision is

20 See, e.g., Shell Oil Co., 149 NLRB 283 (1964); Westinghouse
Electric Corp. (Mansfield Plant), 150 NLRB 1574 (1965); Winn-Dixie
Stores, Inc., 224 NLRB 1418 (1976). See also the text accompanying
notes 30–44, infra.
21 Although Beverly I and Register-Guard provide support for the
reasoning adopted by my colleagues today, each case is distinguishable
from the instant cases. In Beverly I, the employer did not rely on a past
practice defense, and the employer in Register-Guard did not establish
that the changes undertaken were consistent with past actions taken by
the employer.
contrary to Katz as well as numerous other longstanding
and recent Board and court decisions.
For these reasons, as described more fully below, I re-
spectfully dissent.
Discussion
A. The Supreme Court Katz Decision and Other Cases
Addressing What Constitutes a “Change”
As noted above, this case is controlled by the Supreme
Court’s decision in Katz. Prior to Katz, it was well estab-
lished that Section 8(a)(5) require parties to engage, upon
request, in good-faith negotiation over mandatory bar-
gaining subjects, which the Act defines as “wages, hours,
and other terms and conditions of employment”22 Sepa-
rate from this duty to bargain upon request,23 the Su-
preme Court in Katz held that Section 8(a)(5) requires
employers to refrain from making a change in mandatory
bargaining subjects unless the change was preceded by
giving the union notice and the opportunity for bargain-

22 Sec. 8(d). A subject is considered a “mandatory” subject of bar-
gaining when it is among the subjects described in Sec. 8(d) of the Act,
which defines the duty to bargain collectively as encompassing “wages,
hours, and other terms and conditions of employment.” NLRB v. Borg-
Warner Corp., 356 U.S. 342, 349 (1958) (regarding mandatory sub-
jects, the employer and union upon request have an “obligation . . . to
bargain with each other in good faith,” although “neither party is legal-
ly obligated to yield”); NLRB v. Katz, 369 U.S. at 743 (“A refusal to
negotiate in fact as to any subject which is within § 8(d), and about
which the union seeks to negotiate, violates § 8(a)(5) though the em-
ployer has every desire to reach agreement with the union upon an
over-all collective agreement and earnestly and in all good faith bar-
gains to that end.”) (emphasis added).
23 There are some exceptions to the requirement to bargain upon re-
quest over a mandatory subject, including, for example, where the
parties have entered into a collective-bargaining agreement that sus-
pends the obligation to bargain for the agreement’s term, or that consti-
tutes a waiver of the obligation to bargain or covers the subject matter
at issue. Provena St. Joseph Medical Center, 350 NLRB 808, 811
(2007). Cf. Department of Navy v. FLRA, 962 F.2d 48, 57 (D.C. Cir.
1992) (describing “contract coverage” standard applied by some courts
when evaluating whether unilateral action is permitted); NLRB v. Postal
Service, 8 F.3d 832, 836–837 (D.C. Cir. 1993) (same); Chicago Trib-
une Co. v. NLRB, 974 F.2d 933, 936–937 (7th Cir. 1992) (same).
Significantly, as noted above, the duty to bargain upon request re-
garding a mandatory subject of bargaining is not satisfied or eliminated
based on an employer’s past practice. Therefore, even if an employer
has taken actions involving wages or other employment terms in pre-
cisely the same way, the existence of such a past practice does not
permit the employer to refuse to bargain over the subject if requested to
do so by the union. See, e.g., Shell Oil Co., 149 NLRB 283, 287
(1964). In other words, even though Katz permits the employer to take
unilateral actions to the extent they are not a “change” (i.e., if they are
consistent with past practice), the employer must engage in bargaining
regarding those actions whenever the union requests such bargaining,
unless an exception to the duty to bargain applies—e.g., the existence
of CBA language that waives any obligation to bargain over the subject
or that demonstrates that bargaining over the subject has already oc-
curred. See Provena, supra; Department of Navy v. FLRA, supra.
E.I. DU PONT DE NEMOURS 19
ing regarding the planned change.24 Among other things,
the employer in Katz—while engaging in initial contract
negotiations with the Union—unilaterally implemented
merit wage increases for some employees and not others,
without giving the union any notice or the opportunity
for bargaining regarding the merit increases before they
were imposed. The employer implemented selective
“merit increases” that had been discussed in three bar-
gaining sessions, even though “no final understanding
had been reached.”25 The Supreme Court concluded that
unilaterally changing wages constituted an unlawful re-
fusal to bargain in violation of Section 8(a)(5):
The respondents’ . . . unilateral action related to
merit increases . . . . must be viewed as tantamount
to an outright refusal to negotiate on that subject,
and therefore as a violation of § 8(a)(5), unless . . .
the January raises were in line with the company’s
long-standing practice of granting quarterly or sem-
iannual merit reviews—in effect, were a mere con-
tinuation of the status quo . . . . Whatever might be
the case as to so-called “merit raises” which are in
fact simply automatic increases to which the em-
ployer has already committed himself, the raises
here in question were in no sense automatic, but
were informed by a large measure of discretion.
There simply is no way in such case for a union to
know whether or not there has been a substantial
departure from past practice, and therefore the un-
ion may properly insist that the company negotiate
as to the procedures and criteria for determining
such increases.26
The rule in Katz is that employers cannot deviate from
the status quo by making unilateral changes in wages and
other mandatory bargaining subjects. The Katz excep-
tion—often referred to as the “dynamic status quo”—
permits unilateral wage increases that are supported by
the employer’s past practice.27 As described by Profes-
sors Gorman and Finkin in the most recent edition of
their well-known treatise:
[T]he case law (including the Katz decision itself)
makes clear that conditions of employment are to be
viewed dynamically and that the status quo against

24 Although Katz involved the obligation to refrain from making
changes from the status quo during negotiations for a first contract, the
Katz principle was subsequently reaffirmed by the Supreme Court in
the context of negotiations for a new CBA following expiration of the
prior CBA. See Litton Financial Printing Division v. NLRB, 501 U.S.
190, 198 (1991).
25 369 U.S. at 746.
26 Id. at 745–747 (emphasis added; footnote omitted).
27 Id. at 746.
which the employer’s “change” is considered must
take account of any regular and consistent past pattern
of change. An employer modification consistent with
such a pattern is not a “change” in working conditions
at all.28
One conclusion is readily apparent from the above de-
scriptions of what constitutes a “change” for purposes of
Katz. There is no suggestion that the determination of
whether a “change” had occurred involved anything
more than determining “whether or not there has been a
substantial departure from past practice.”29 In other
words, when evaluating whether particular actions con-
stitute a “change,” one evaluates only the action or ac-
tions taken in relation to actions that have been taken in
the past. One does not consider whether the actions tak-
en in the past were taken under a CBA containing a man-
agement right’s clause or other contractual bargaining
waiver.
Indeed, in Shell Oil, which was decided by the Board
in 1964 (two years after the Supreme Court’s Katz deci-
sion), the Board squarely rejected the position urged by
my colleagues today. The Board held that, when evalu-
ating whether an employer’s actions constitute a
“change,” this does not depend on whether past actions
were permitted by CBA language that no longer applies
following the CBA’s expiration.
In Shell, the parties’ CBA contained a subcontracting
clause—article XIV—that authorized the employer to
subcontract bargaining-unit work without giving the un-
ion notice and an opportunity to bargain. Consistent with
management’s right recognized in article XIV, the em-
ployer “for some time” had subcontracted construction
and maintenance work.30 The CBA expired in March
1962, and a lengthy hiatus period ensued during which
no CBA was in effect.31 During the hiatus, the employer
subcontracted three construction and/or maintenance jobs
without giving the union notice and opportunity to bar-
gain.32
In these circumstances, the Board in Shell found that
the employer did not violate Section 8(a)(5) of the Act
when it unilaterally subcontracted work during the hiatus
between contracts because the subcontracting was con-

28 Robert A. Gorman, Matthew W. Finkin, Labor Law Analysis and
Advocacy, at 720 (Juris 2013) (hereinafter “Gorman & Finkin”) (em-
phasis added). See also Westinghouse Electric Corp. (Mansfield
Plant), 1577 (1965) (referring to whether unilateral subcontracting
decisions “vary significantly in kind or degree from what had been
customary under past established practice”).
29 Katz, 369 U.S. at 746–747 (emphasis added).
30 149 NLRB at 284.
31 Id. at 285.
32 Id. at 285–286.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sistent with what the employer had done previously. The
General Counsel argued that the new subcontracting dur-
ing the hiatus must be regarded as a change because the
prior subcontracting occurred during the CBA (which
contained article XIV, the subcontracting clause that rec-
ognized management’s right to engage in subcontracting
unilaterally), and the General Counsel contended that
“termination of the preceding agreement in March 1962
revived any bargaining rights the Union may have sur-
rendered under article XIV.”33 The Board rejected this
argument for reasons that have equal application in the
instant case:
In our opinion, the rights and duties of parties to collec-
tive bargaining, during a hiatus between contracts, may
be derived from sources other than a formal extension
agreement. Thus, it is well settled that notwithstanding
the termination of a labor contract, the parties, pending
its renewal or renegotiation, have the right and obliga-
tion to maintain existing conditions of employment.
Unilateral changes therein violate the statutory duty to
bargain in good faith. We are persuaded and find that
Respondent’s frequently invoked practice of contract-
ing out occasional maintenance work on a unilateral
basis, while predicated upon observance and imple-
mentation of article XIV, had also become an estab-
lished employment practice and, as such, a term and
condition of employment.34
The Board concluded:
[I]t does not appear that the subcontracting during this
hiatus period materially varied in kind or degree from
what had been customary in the past. In these circum-
stances, we cannot say that the Respondent’s action in
subcontracting, according to its established practice,
certain unit work without prior notice to or bargaining
with the Union during the period when no bargaining
agreement was in effect was in derogation of a statutory
duty to bargain on terms and conditions of employ-
ment.35

33 Id. at 287.
34 Id. at 287 (emphasis added).
35 Id. at 288 (emphasis added). The Board in Shell Oil also held that,
even though the employer could continue its practice of engaging in
unilateral subcontracting during the hiatus between contracts—i.e.,
without giving the union advance notice and the opportunity for bar-
gaining before making and implementing the subcontracting decision—
the union retained its right to request bargaining over subcontracting,
and the employer—though permitted to proceed with subcontracting
unilaterally—was still required to engage in bargaining as requested by
the union. Thus, separate from the employer’s right to engage in lawful
subcontracting under Katz, any existing past practice did not eliminate
the employer’s duty to engage in bargaining upon request by the union
because the union had the right “to propose a change in or elimination
Significantly, the Supreme Court in Fibreboard Paper
Products Corp. v. NLRB36 upheld the Board’s position
that certain subcontracting decisions were a mandatory
subject of bargaining. Yet, in the Board’s very first post-
Fibreboard case evaluating subcontracting—
Westinghouse Electric Corp. (Mansfield Plant)37—the
Board reiterated that determining what constitutes a
“change,” even during the hiatus between contracts, in-
volves comparing the challenged actions taken by the
employer with what the employer had done in the past.
Thus, in Westinghouse the Board, applying Katz and
Fibreboard, squarely rejected the position that my col-
leagues are adopting today.
In Westinghouse, the Board held that the employer
lawfully implemented “thousands of contracts”38 during
a hiatus period between contracts, and it explained this
decision as follows:
[I]t is wrong to assume that, in the absence of an exist-
ing contractual waiver, it is a per se unfair labor prac-
tice in all situations for an employer to let out unit work
without consulting the unit bargaining representative.
As the Supreme Court [in Katz] has indicated in a
broader context, even where a subject of mandatory
bargaining is involved, there may be “circumstances
which the Board could or should accept as excusing or
justifying unilateral action.”
It is also pertinent to the issue before us to observe that
an employer’s duty to give a union prior notice and an
opportunity to bargain normally arises where the em-
ployer proposes to take action which will effect some
change in existing employment terms or conditions
within the range of mandatory bargaining. In the Fi-
breboard line of cases, where the Board has found uni-
lateral contracting out of unit work to be violative of
Section 8(a)(5) and (1), it has invariably appeared that
the contracting out involved a departure from previous-
ly established operating practices, effected a change in
conditions of employment, or resulted in a significant
impairment of job tenure, employment security, or rea-
sonably anticipated work opportunities for those in the
bargaining unit.

of the Company’s practice and to request bargaining thereon.” Id. But
the Board stated that “the Union’s demand to bargain for a modification
or elimination of the Respondent’s established practice did not suspend
the Respondent’s right to maintain its established practice, any more
than a demand by the Union to modify the existing wage structure
would suspend Respondent’s obligation to maintain such wage struc-
ture during negotiations.” Id. at 287–288.
36 379 U.S. 203, 211 (1964).
37 150 NLRB 1574 (1965).
38 Id. at 1576.
E.I. DU PONT DE NEMOURS 21
Here, however, there was no departure from the norm
in the letting out of the thousands of contracts to which
the complaint is addressed. The making of such con-
tracts was but a recurrent event in a familiar pattern
comporting with the Respondent’s usual method of
conducting its manufacturing operations at the Mans-
field Plant. It does not appear that the subcontracting
engaged in during the period in question materially var-
ied in kind or degree from that which had been custom-
ary in the past.39
Even when dealing with something as central to the
Act as wages, the Board has likewise found that, when an
employer has a past practice of providing certain wage
increases, an employer does not violate Section 8(a)(5)
when it provides new wage increases in keeping with
that practice without bargaining. See, e.g., Daily News of
Los Angeles, 315 NLRB 1236 (1994), enfd. 73 F.3d 406
(D.C. Cir. 1996). Indeed, although the majority in to-
day’s decision finds that any “discretion” associated with
an employer’s action means the action constitutes a
“change” that cannot be unilaterally implemented, re-
gardless of whether the employer has taken precisely the
same actions in the past, the Board in other cases has
expansively defined “past practice” when finding that the
Act requires employers to take unilateral actions—
specifically, to provide new wage increases without bar-
gaining—even though the past wage increases involved
substantial employer discretion. See Arc Bridges, Inc.,
355 NLRB 1222 (2010), enf. denied 662 F.3d 1235 (D.C.
Cir. 2011); Mission Foods, 350 NLRB 336, 337 (2007);

39 Id. (emphasis added). In Westinghouse, the Board again stated
that an employer’s right to engage in unilateral subcontracting con-
sistent with past practice did not affect or diminish the employer’s
obligation, upon request, to bargain with the union regarding subcon-
tracting. Id. at 1576–1577 (“We do not mean to suggest that, because
subcontracting in accordance with an established practice may stand on
a different footing from that of subcontracting in other contexts, an
employer is any less under an obligation to bargain with the union on
request at an appropriate time with respect to such restrictions or other
changes in current subcontracting practices as the union may wish to
negotiate.”). Significantly, the Board held that this duty to bargain
upon request was an additional reason not to require bargaining before
an employer took action that was consistent with past practice. Thus,
the Board in Westinghouse explained: “The fact that the Union does
have an opportunity to bargain generally on request about Respondent’s
recurrent subcontracting practices, provides in our view a contributing,
though not a controlling, reason for not imposing upon the Respondent
the duty to bargain separately, at the decision-making level, about each
of the thousands of individual subcontracts covering work that could be
performed by its own employees.” Id. at 1577 (emphasis added).
As noted in the text, the union’s right to request bargaining regard-
ing mandatory subjects is not reduced or eliminated merely because an
employer may have the right to take unilateral action consistent with its
past practice, and any contractual waiver of the union’s right to request
bargaining would remain predicated on the existence of a contract. Id.
Central Maine Morning Sentinel, 295 NLRB 376
(1989).40
Nor has the Board required bargaining prior to an em-
ployer’s minor variations from actions taken in the past.
“When changes in existing plant rules . . . constitute
merely particularizations of, or delineations of means for
carrying out, an established rule or practice,” it is lawful
to continue applying the same rules without bargaining
because the changes are not sufficiently “material, sub-
stantial, and significant” to require notice and the oppor-
tunity to bargain. Bath Iron Works Corp., 302 NLRB
898, 901 (1991); see Trading Port, Inc., 224 NLRB 980,
983–984 (1976) (employer implemented no change that
required bargaining when the employer applied its preex-
isting productivity standards, including penalties for fail-
ing to satisfy those standards, but “devised a more effi-
cient means of detecting individual levels of productivi-
ty, of policing individual efficiency, and advanced a
more stringent view towards below average producers
than in the preceding 18 months or so”).
In more recent decisions—as the Court of Appeals for
the D.C. Circuit recognized when remanding this case—
the Board and the courts have likewise held that, follow-
ing a CBA’s expiration, employers may lawfully take
unilateral actions consistent with past practice, even
though the practice may have occurred in whole or in
part while prior CBAs were in effect. In Courier-
Journal I, the Board held that the legality of employer
actions consistent with past practice following contract
expiration did not depend on “‘whether a contractual
waiver of the right to bargain survives the expiration of
the contract’ but rather upon whether the change ‘is
grounded in past practice, and the continuance there-
of.’”41 In Capitol Ford, the Board stated that “‘the mere
fact that the past practice was developed under a now-
expired contract does not gainsay the existence of the
past practice,’” and “although the employer ‘cannot rely
upon the management rights clause of that contract to
justify unilateral action,’ the ‘past practice is not depend-
ent on the continued existence of the [expired] collective-

40 In my view, the Board must exercise considerable care when in-
terpreting Katz—where the Supreme Court described a defense against
an allegation that an employer’s unilateral changes violated Sec.
8(a)(5)—to mean that Sec. 8(a)(5) imposes an obligation on employers
to make unilateral changes in wages, particularly since the Act explicit-
ly states that the duty to bargain “does not compel either party to agree
to a proposal or require the making of a concession.” Sec. 8(d); see
also H. K. Porter Co. v. NLRB, 397 U.S. 99, 102 (1970). I do not here
reach or pass on the validity of cases that apply this reverse version of
the Katz exception.
41 E.I. du Pont de Nemours & Co. v. NLRB, 682 F.3d 65, 69 (D.C.
Cir. 2012) (DuPont remand) (quoting Courier–Journal I, 342 NLRB at
1095).
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining agreement.’”42 To the same effect, as the
D.C. Circuit observed in its decision remanding these
cases, the Court of Appeals for the Sixth Circuit “cap-
tured the point precisely” in Beverly Health and Rehabil-
itation Services, Inc. v. NLRB, 297 F.3d 468 (6th Cir.
2002), where the Sixth Circuit stated: “‘[I]t is the actual
past practice of unilateral activity under the manage-
ment-rights clause of the CBA, and not the existence of
the management-rights clause itself, that allows the em-
ployer’s past practice of unilateral change to survive the
termination of the contract.”43 And in Beverly II, alt-
hough a consistent past practice had not been established,
the Board stated that “‘without regard to whether the
management-rights clause survived,’” the employer
would have been “‘privileged’” to make “‘the unilateral
changes at issue if [its] conduct was consistent with a
pattern of frequent exercise of its right to make unilateral
changes during the term of the contract.’”44
It is true that, contrary to this extensive and consistent
application of Katz—finding that an employer has made
no “change” when it has taken the same action previous-
ly, regardless of whether a CBA was in effect—the
Board issued decisions in Beverly I,45 decided in 2001,
and Register-Guard,46 decided in 2003, which support
the reasoning adopted by my colleagues in today’s deci-
sion. At most, however—as the above discussion
demonstrates—Beverly I and Register-Guard were short-
lived departures from preexisting case law, and the
Board returned to its prior longstanding treatment of this
issue, consistent with Katz, in the Courier-Journal cases
(decided in 2004), Capitol Ford (also decided in 2004),
and Beverly II (decided in 2006).47

42 Id. (quoting Capitol Ford, 343 NLRB at 1058 fn. 3) (alteration in
DuPont remand).
43 Id. (quoting Beverly Health and Rehabilitation Services, Inc. v.
NLRB, 297 F.3d at 481) (alteration in DuPont remand; emphasis add-
ed).
44 Id. at 69–70 (quoting Beverly II, 346 NLRB at 1319 fn. 5) (altera-
tion in DuPont remand).
45 335 NLRB at 635.
46 339 NLRB at 353.
47 It is not correct, as my colleagues appear to argue, that Shell Oil
and Winn-Dixie were subsequently overruled with respect to the hold-
ings of those cases that are relevant here. My colleagues indicate that
Shell Oil and Winn-Dixie were “deemed” by the Board in Beverly I to
have been “overruled in relevant part[,]” sub silentio, by subsequent
precedent (Majority opinion, slip op. at 5-6, fn. 17). However, the only
aspects of Shell Oil and Winn-Dixie that were referenced in Beverly I as
being potentially overruled involved a different proposition—that a
management-rights clause does not survive contract expiration—with
which I completely agree. See Beverly I, 335 NLRB at 636 (“[T]he
management-rights clause in those agreements . . . did not survive the
contracts’ expiration.”) (footnote omitted). The Board in Beverly I then
indicated that, “[t]o the extent” that Shell Oil and Winn-Dixie “could be
read to imply the contrary,” they had been overruled sub silentio in
more recent cases. Again, this pertained only to whether a manage-
B. The Board Majority Incorrectly Redefines What Em-
ployer Actions Constitute a “Change” Requiring Ad-
vance Notice and the Opportunity for Bargaining
For several reasons, I disagree with my colleagues’ re-
definition of the term “change” under Katz, and I believe
they erroneously expand the Katz duty to refrain from
making unilateral changes to encompass situations where
an employer continues its preexisting practice. In partic-
ular, when evaluating whether an employer’s actions
constitute a “change,” I believe it is unreasonable to re-
quire parties and the Board to examine whether and what
type of CBA(s) may have existed at various times in the
past. I also believe my colleagues improperly conclude
that everything constitutes a “change” within the mean-
ing of Katz—regardless of what an employer has done in
the past—if the employer’s actions involve “discretion.”
First, as noted above, Katz supports a view that, when
examining whether an employer’s actions constitute a
“change” (triggering the obligation to provide notice and

ment-rights clause survives contract expiration, which is not disputed in
the instant case. Moreover, the Board’s suggestion in Beverly I—that
Shell Oil or Winn-Dixie “could be read to imply” that management-
rights clauses survive contract expiration—was unfounded. Neither
Shell Oil or Winn-Dixie implies any such thing: neither decision held
or so much as suggested that a management-rights clause survives
following expiration of the CBA. Rather, as described in the text, the
decisions in Shell Oil and Winn-Dixie reflect the fact that an employer’s
actions based on past practice do not constitute a “change” over which
bargaining is required. It is true that in Beverly I, two members of a
three-member panel—Members Liebman and Walsh—expressed the
same position the majority adopts today: that a past practice developed
under the auspices of a management-rights clause terminates at the
expiration of the CBA that contained that clause. 335 NLRB at 636 &
fn. 7. However, the third member of the panel, Chairman Hurtgen,
rejected that view. Id. at 646 (“[E]ven if the management-rights clause
expired with the contract, the work practices that were extant during the
contract constituted a part of the terms and conditions of employment.
Thus, if the employer, after contract expiration, continues to act con-
sistently with those practices, it has not ‘changed’ the status quo and it
has not violated Section 8(a)(5).”). Because the Board adheres to the
practice that two members cannot overrule Board precedent, this makes
it even clearer that the panel majority consisting of Members Liebman
and Walsh in Beverly I did not overrule Shell Oil or Winn-Dixie. Prior
to my colleagues’ decision today, the Board has never overruled Shell
Oil or Winn-Dixie (by implication or otherwise) regarding the import of
past practice—which is unaffected by the existence or nonexistence of
a management-rights clause—and this holding was subsequently reaf-
firmed in the Courier-Journal cases, Capitol Ford, and Beverly II.
Moreover, this is precisely the distinction made by the D.C. Circuit
when it remanded this case. As the court stated, “whether a manage-
ment-rights clause survives the expiration of the contract is beside the
point Du Pont is making.” DuPont remand, 682 F.3d at 69. The court
then stated that the Sixth Circuit also “captured the point precisely”
when it observed that “‘it is the actual past practice of unilateral activity
under the management-rights clause of the CBA, and not the existence
of the management-rights clause itself, that allows the employer’s past
practice of unilateral change to survive the termination of the con-
tract.’” Id. (quoting Beverly Health and Rehabilitation Services, Inc. v.
NLRB, 297 F.3d 468, 481 (2002)).
E.I. DU PONT DE NEMOURS 23
the opportunity for bargaining), the only relevant factual
question is whether the employer’s actions are similar in
kind and degree to what the employer did in the past.
This is precisely the inquiry undertaken by the Supreme
Court in Katz, as shown by the Court’s finding that the
employer’s merit increases were not “in line with the
company’s long-standing practice of granting quarterly
or semiannual merit reviews,” and its resulting conclu-
sion that the increases could not reasonably be regarded
as “a mere continuation of the status quo.” In determin-
ing whether the employer had made a change, the Court
focused on the union’s ability to determine “whether or
not there has been a substantial departure from past prac-
tice” involving, among other things, “the procedures and
criteria for determining such increases.”48
Second, in Katz, the employer was engaged in bargain-
ing for an initial contract, and the Supreme Court held
that the employer’s unilateral actions would have been
permissible to the extent they were consistent with its
“long-standing practice.”49 This leaves no doubt that the
Supreme Court in Katz—at least in this context—focused
specifically on what actually occurred without regard to
any prior contractual waiver (since no prior contracts
existed) when determining whether the employer’s action
constituted a “change.”
Third, I believe the issues presented here are controlled
by Katz. Thus, although my colleagues portray these
issues as being within the province of the Board—if true,
the majority would be free to change existing law if it
articulates a reasoned justification for doing so50—the
Board is duty-bound to apply decisions of the Supreme
Court, including decisions interpreting the Act. As to the
proper interpretation of what constitutes a “change,”
however, I believe there is no “reasoned justification”51
for abandoning the longstanding interpretation of Katz52

48 Katz, 369 U.S. at 746–747.
49 Katz, 369 U.S. at 746.
50 As the D.C. Circuit correctly observed when remanding these cas-
es to the Board, when the Board deviates from its own precedent—
which it clearly did when it decided these cases previously—the Board
is required, at a minimum, to provide a “reasoned justification for de-
parting from its precedent.” DuPont remand, 682 F.2d at 70 (citation
omitted).
51 Id. at 70.
52 The D.C. Circuit, when rejecting the Board’s prior analysis, stated
that it was not consistent with the Board’s own decisions. The D.C.
Circuit did not state its views regarding the merits, but it is significant
that the court of appeals described Katz as holding that an employer
“unilaterally may implement changes ‘in line with [its] long-standing
practice’ because such changes amount to ‘a mere continuation of the
status quo,’” and the court quoted Courier-Journal for the proposition
that “‘a unilateral change made pursuant to a longstanding practice is
essentially a continuation of the status quo—not a violation of Section
8(a)(5).’” 682 F.3d at 67 (quoting Katz, 369 U.S. at 746, and Courier-
Journal I, 342 NLRB at 1094)). I believe both of these propositions,
that the Board applied consistently over many decades—
except for the 3-year period when it deviated from this
interpretation in Beverly I and Register-Guard—as re-
flected in the Courier-Journal cases, Shell Oil, and West-
inghouse, among others. As the Board has stated,
whether a “change” has occurred under Katz does not
depend on “whether a contractual waiver of the right to
bargain survives the expiration of the contract” but rather
upon whether the change “is grounded in past practice,
and the continuance thereof”;53 “the mere fact that the
past practice was developed under a now-expired con-
tract does not gainsay the existence of the past prac-
tice”;54 and even when the employer’s actions involved
“thousands of contracts” with outside employers during a
hiatus between CBAs, there was no “change” that re-
quired advance notice and potential bargaining with the
union when the employer’s actions did not “materially
var[y] in kind or degree from that which had been cus-
tomary in the past.”55
Fourth, as noted above, I believe the majority’s under-
standing of what constitutes a “change” defies common
sense. Nearly everyone would evaluate whether a
“change” has occurred by comparing the challenged ac-
tions to the employer’s past actions. In contrast, my col-
leagues define “change” as requiring the examination of
matters other than what occurred before. Specifically, if
an employer is doing precisely what it has always done,
my colleagues find this involves a “change” if past ac-
tions were taken when a CBA containing a management
rights clause was in effect. It is incongruous to deter-
mine whether a “change” has occurred during periods
when no CBA exists by undertaking a detailed historical
examination of past CBA provisions, all of which have
expired. Not only does this improperly confuse the con-
cept of “contractual waiver” with the Katz focus on what
constitutes a “change,” it is a near-certainty that the
Board’s analysis of these purely contractual issues would
not be afforded deference by the courts. See Litton Fi-
nancial Printing Division v. NLRB, 501 U.S. at 203 (“We
would risk the development of conflicting principles
were we to defer to the Board in its interpretation of the
contract, as distinct from its devising a remedy for the
unfair labor practice that follows from a breach of con-
tract.”).

which the D.C. Circuit quoted with approval, are contrary to the Board
majority’s holding in the instant case.
53 Courier–Journal I, 342 NLRB at 1094.
54 Capitol Ford, 343 NLRB at 1058 fn. 3.
55 Westinghouse, 150 NLRB at 1576; see also Shell Oil, 149 NLRB
at 288 (no duty under Katz to provide advance notice and the oppor-
tunity for bargaining regarding subcontracting during hiatus period that
had not “materially varied in kind or degree from what had been cus-
tomary in the past”).
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fifth, by requiring scrutiny of prior CBAs, possibly
extending back in time over decades, the majority estab-
lishes a standard with which most employers and unions
will find it impossible to comply. Here, my colleagues
do not merely misinterpret Katz, they eliminate the hold-
ing of Katz permitting employers to take actions “in line
with the company’s long-standing practice”56 to the ex-
tent their standard will prevent anyone from establishing
the existence of a “long-standing practice.”57 My col-
leagues use shorthand references to the mere existence or
nonexistence of a CBA, which incorrectly presume that
any past employer actions taken during a CBA’s term
must have been permissible only because the CBA con-
tained a contractual waiver. However, their standard
clearly requires meticulous scrutiny into myriad details.
Rather than doing what Katz directs—which is to inquire
whether the employer’s challenged actions are consistent
with what it did before—the majority’s approach re-
quires detailed scrutiny into the following:
(a) precisely when did prior actions occur, when did
they commence, and when did they cease;
(b) whether and to what extent prior actions coincided
with times when prior CBAs existed, or before
any CBAs existed, and/or during hiatus periods
between CBAs;58
(c) where prior actions were permitted pursuant to
side agreements, grievance settlements, or arbitra-
tion awards that were not memorialized in any
CBA, whether these constituted a “waiver” or
were merely based on a preexisting management
right that existed separate from any agreement;
(d) what substantive contract terms existed in any pri-
or CBAs pertaining to the “past practice”; what
came first, the CBAs or the employer’s practice;
and did the CBA constitute a “waiver” permitting
unilateral actions the employer could otherwise
not take, or did the CBA merely recognize a
preexisting management right that existed separate
from the CBA;

56 Katz, 369 U.S. at 746.
57 Id.
58 My colleagues no longer rely on the (false) dichotomy between
unilateral changes made during the term of a contract and unilateral
changes made during the hiatus periods between contracts, which the
Board previously relied on in attempting to distinguish the instant cases
from the Courier-Journal cases. See E.I. DuPont de Nemours, Louis-
ville Works, 355 NLRB 1084, 1084–1085 (2010); E.I. DuPont de
Nemours & Co. (Edge Moor), 355 NLRB 1096, 1096 (2010). This
notwithstanding, drilling down into the contracts would still require us
to analyze, in at least some circumstances, interpretations of language
in (expired) contracts during hiatus periods.
(e) how did relevant CBA provisions, side agree-
ments, grievance settlements, or arbitration
awards evolve over the years; when did the
changes occur; and how did these provisions,
agreements, settlements or awards coincide with
the employer’s past actions; and
(f) did negotiating history establish that parties
agreed the employer lacked the right to take par-
ticular actions absent express language in the
CBA, or did the employer insist on CBA provi-
sions that conformed to a right that had already
been exercised and as to which the union acqui-
esced.
The Supreme Court did not deem any of these considera-
tions relevant when it considered Katz or Litton. Indeed, it
is clear the Supreme Court would have rejected arguments
that such scrutiny was necessary to determine whether em-
ployer actions constituted a “change” from what had oc-
curred before. To borrow the Supreme Court’s language in
Katz, under my colleagues’ approach “[t]here simply is no
way . . . for a union” or anyone else “to know whether or
not there has been a substantial departure from past prac-
tice.”59
Sixth, my colleagues attempt to minimize the unwork-
able nature of today’s decision, as illustrated above, but

59 Katz, 369 U.S. at 746–747 (emphasis added). Indeed, another in-
congruity resulting from my colleagues’ redefinition of “change” under
Katz is their creation of multiple different standards that parties would
need to apply when evaluating whether a “change” occurred. One Katz
standard would apply during bargaining for an initial contract, when no
union has previously represented the unit employees and no CBA has
previously existed. In this situation, parties would determine whether a
“change” occurred merely by comparing the challenged employer
actions with the employer’s past actions. A second Katz standard
would apply during initial contract negotiations, where the same em-
ployer and union were party to prior CBAs. Here, whether a “change”
occurred would depend, in part, on a detailed scrutiny of prior CBA
provisions in relation to the employer’s past actions, as described in the
text. A third Katz standard would apply whenever the employer is
engaged in first contract negotiations with one union, where employees
were previously represented a different union that had been party to
prior CBAs with the same employer. In this situation, my colleagues
would find that the employer’s prior actions—if taken pursuant to one
or more CBAs with the different union—would be irrelevant when
determining whether the challenged action or actions constituted a
change. However, this conclusion would follow from the prior CBAs,
under the reasoning utilized by my colleagues, only if the employer’s
prior actions were impermissible in the absence of a contractual bar-
gaining waiver, which would again require detailed examination of the
prior CBAs, the specific CBA provisions that ostensibly privileged the
employer’s past actions, and similar issues. Other situations could very
well involve different combinations of the above circumstances. In any
event, because my colleagues’ reasoning would require this type of
examination—which parties would nearly always find impossible to
reconstruct within a reasonable period to permit bargaining, if re-
quired—my colleagues are effectively eliminating the Katz holding that
permits employer actions that are consistent with “long-standing prac-
tice,” 369 U.S. at 746, which exceeds the Board’s authority.
E.I. DU PONT DE NEMOURS 25
in doing so, they make matters worse. The cornerstone
of my colleagues’ analysis is that, whenever management
actions are taken pursuant to rights conferred by clear
and unmistakable CBA language, those actions are not
part of the “status quo” that may lawfully be continued
unilaterally following the CBA’s expiration, because
contractual bargaining waivers expire with the CBA.
However, this also means that employers have the right
to continue without bargaining, as part of the status quo,
past practices that are unrelated to contractual rights con-
ferred under past CBAs. My colleagues must recognize
that these types of past practices continue as part of the
“status quo” because (i) this is precisely what the Su-
preme Court held in Katz, and (ii) even under my col-
leagues’ analysis, a CBA’s expiration only eradicates
those past practices where the employer’s unilateral ac-
tions were based on rights conferred by “clear and un-
mistakable” CBA language.60 In fact, my colleagues
concede that, under their theory, all “extracontractual
terms and conditions of employment that have become
established by past practice” remain part of the “status
quo” that may be continued unilaterally after a CBA’s
expiration—to borrow my colleagues’ words, these ex-
tracontractual past practices “must be maintained after a
contract’s expiration.”61 Therefore, as explained in the
preceding paragraph, my colleagues’ analysis requires
parties to reconstruct what past practices developed in
connection with rights conferred by past clear and unmis-
takable CBA language (which my colleagues would find
may not be continued as part of the “status quo”), as op-
posed to those “extracontractual” past practices that em-
ployers may continue—indeed, must continue—as part of
the “status quo” without bargaining.
Here is where matters get worse. My colleagues state
that their new approach does not require this “drilling-
down” because, in their view, any CBA’s expiration ex-
tinguishes all past practices, including those that devel-
oped extracontractually. My colleagues’ explanation
speaks for itself:

60 The entire premise of my colleagues’ reasoning is that contractual
waivers terminate with the expiration of the CBA. Therefore, the types
of past practice that are extinguished upon the CBA’s expiration are
actions that were based on rights conferred by CBA language. This
means that when a CBA expires, the extinguished past practices must
be limited to those based on actions taken under the auspices of “clear
and unmistakable” CBA language, which is the standard that the Board
(with only mixed acceptance in the courts) uniformly applies when
evaluating contract waivers. See fn. 23, supra. As noted in the text, my
colleagues also concede that “extracontractual” past practices remain
part of the status quo and may be continued (indeed, must be continued)
without bargaining following a CBA’s expiration. See text accompany-
ing fn. 61, infra.
61 Majority’s opinion, slip op. at 4 (emphasis added).
[W]e impose no great new burden on employers or on
the bargaining process generally. First, identifying the
status quo is not difficult and does not involve the
strained “drilling-down” scenario set forth in the dis-
sent. The status quo is whatever employees’ concrete
terms and conditions of employment are—on the
ground, so to speak—when the contract expires. That
is the baseline from which the parties bargain. . . .
Second, employers who wish to be able to continue
making discretionary unilateral changes post-
expiration can bargain for contract language in the
successor agreement that clearly and unmistakably
gives them that right.62
My colleagues cannot have it both ways. Their own opin-
ion differentiates between (i) ”extracontractual” practices
that employers may continue (must continue) without bar-
gaining following the CBA’s expiration, and (ii) practices
attributable to clear and unmistakable contract language that
(according to my colleagues) may not be continued as part
of the “status quo.” This distinction requires the type of
meticulous “drilling-down” that I have described previous-
ly. Alternatively, if one accepts my colleagues’ explanation
in the above-quoted passage, there is no need for “drilling-
down,” but this is only because my colleagues extinguish
virtually all past practices from the status quo when any
CBA expires, and the “baseline” from which parties must
bargain consists of “whatever employees’ concrete terms
and conditions of employment are . . . when the contract
expires.”63 My colleagues’ “baseline” approach has one
virtue: it is indeed simple. Employers can never take ac-
tions unilaterally based on any past practice after a CBA
expires. However, this approach is irreconcilable with Katz,
it is contradicted by my colleagues’ own opinion (including

62 Majority’s opinion, slip op. at 12.
63 Ostensibly, my colleagues are not finding for the time being that
employers violate the Act by taking actions, following a CBA’s expira-
tion, based on “a practice of automatic change based on fixed timing
and criteria [where] that practice was established pursuant to a man-
agement-rights clause” (Majority’s opinion, slip op. at 12 fn. 31).
Although this caveat appears in their opinion—just like they state there
is no need for a meticulous examination of prior CBAs to differentiate
between past practices that are based on conferred contractual rights
and “extracontractual” past practices—my colleagues’ analysis permits
no other conclusion. My colleagues find that a CBA’s expiration—
which discontinues all contractual waivers—also extinguishes past
practices that are based on contractual rights. This rationale necessarily
encompasses all “contractual” past practices under Section 8(a)(5),
even if employers elected to exercise their contractual discretion by
taking action “based on fixed timing and criteria.” For the reasons
explained in the text, I believe that treating past practices in these cir-
cumstances as if they did not exist is directly contrary to Katz and ex-
tensive Board case law.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their entire rationale underlying their decision in this case),64
and it is contrary to other Board cases.65
Seventh, I believe it is equally objectionable for my
colleagues to find that an employer’s actions always con-
stitute a “change” under Katz whenever the employer’s
actions involve “discretion.” Although the Supreme
Court in Katz mentioned that the employer’s “merit in-
creases” at issue in that case involved “a large measure
of discretion,” this was a factual observation made by the
Court when comparing the “merit increases” to a differ-
ent “long-standing practice” that involved “quarterly or
semiannual merit reviews,” and the Court referred to the
latter as “so-called ‘merit raises’” because they were “in
fact simply automatic increases.”66 The Supreme Court
certainly did not articulate a blanket rule that every ac-
tion taken by an employer involving any “discretion”
required advance notice and the opportunity for bargain-
ing, even if the employer was continuing to do precisely
what it had always done. Rather, even regarding the
“merit increases” at issue in Katz, the Supreme Court still
examined whether they constituted a “change,” and the
Court examined whether they were “in line with the
company’s long-standing practice” and whether it was
possible “for a union to know whether or not there has
been a substantial departure from past practice.”67
Moreover, the Board has applied Katz in circumstances
where the employer’s actions involved substantial discre-
tion. For example, in Westinghouse, the employer en-
gaged in unilateral subcontracting implemented “thou-
sands of contracts,” and the Board found that no
“change” occurred within the meaning of Katz because
the subcontracting had not “materially varied in kind or
degree from what had been customary in the past.”68
Additionally, the majority’s holding here that the exer-
cise of “discretion” precludes unilateral action is squarely
contrary to the Board’s treatment of Section 8(a)(5) cases
addressing whether past changes (e.g., wage increases)
are part of the “status quo” that must be continued with-
out bargaining based on the Katz definition of “change.”
In these cases, as noted above, the Board has held it does
not constitute a “change” for an employer to grant unilat-
eral wage increases—indeed, the Board finds the em-
ployer is required to give those increases without bar-

64 See fn. 60–61and accompanying text supra.
65 See, e.g., Arc Bridges, Inc., 355 NLRB at 1222; Mission Foods,
350 NLRB at 337 (2007); Central Maine Morning Sentinel, 295 NLRB
at 376.
66 Katz, 369 U.S. at 746–747 (emphasis added).
67 Id.
68 Westinghouse, 150 NLRB at 1576; see also Shell Oil, 149 NLRB
at 288.
gaining—even though past wage increases involved sub-
stantial employer discretion.69
Finally, the change in the law adopted by my col-
leagues here goes to one of the most central aspects of
the Act—the duty to bargain—and the inability of em-
ployers to act without, in every instance, affording sepa-
rate notification and opportunities for bargaining until
the parties bargain to agreement on a complete contract
or overall impasse may substantially undermine the em-
ployers’ ability to operate their businesses. My col-
leagues create confusion when parties need to know the
scope of their respective rights and obligations by con-
structing standards that will prevent employers from hav-
ing any “certainty beforehand” regarding when they may
safely continue to act as they have in the past.70 Appli-
cable here are the Supreme Court’s observations in First
National Maintenance, where the Court (evaluating par-
tial closing decisions) found that no duty to bargain ex-
isted:
An employer would have difficulty determining before-
hand whether it was faced with a situation requiring
bargaining or one that [was] . . . sufficiently compelling
to obviate the duty to bargain. . . . A union, too, would
have difficulty determining the limits of its preroga-
tives, whether and when it could use its economic pow-
ers to try to alter an employer’s decision, or whether, in
doing so, it would trigger sanctions from the Board.71
C. Application of the Law to DuPont’s Actions Here
As described by my colleagues and in the D.C. Cir-
cuit’s opinion remanding this case, DuPont had been
party to successive CBAs at its facilities in Louisville,
Kentucky and Edge Moor, Delaware. During bargaining
at Edge Moor in 1993 and at Louisville in 1994, the par-
ties agreed that the unit employees would be covered by
DuPont’s Beneflex Plan. From 1994 through 2004,
DuPont made changes to the Beneflex Plan every year
during the annual enrollment period and applied those
changes to the unit employees at Louisville (1995 to
2002) and Edge Moor (1994 to 2004). The changes in-
cluded “increases in the premiums for medical, life, vi-
sion, and dental insurance, changes in coverage, and the
addition and elimination of plan options.”72 DuPont ap-
plied the changes “to employees at all Du Pont facilities,
to union and non-union employees alike.”73 After the

69 See Arc Bridges, Inc., 355 NLRB at 1222; Mission Foods, 350
NLRB at 337; Central Maine Morning Sentinel, 295 NLRB at 376.
70 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 679
(1981).
71 Id. at 684–686 (emphasis added; citations omitted).
72 DuPont remand, 682 F.3d at 66–67.
73 Id. at 66–67.
E.I. DU PONT DE NEMOURS 27
CBAs at Louisville and Edge Moor expired, and while
DuPont was engaged in bargaining with the union at
each facility for a successor contract, DuPont announced
similar types of changes during the annual enrollment
period as DuPont had previously made.74
In these circumstances, consistent with Katz, I believe
the Board must find that DuPont’s changes were lawfully
implemented, consistent with its “long-standing prac-
tice.”75 Previously, the D.C. Circuit reversed and re-
manded the Board’s prior decisions in these cases76 be-
cause (i) the Board’s own cases contradicted the Board’s
finding that DuPont’s actions constituted an unlawful
unilateral change, and (ii) the Board had not given a
“reasoned justification” for departing from its own prec-
edent.77 With all due respect to my colleagues, I believe
the majority still has provided no “reasoned justification”
for the standards being adopted today, and reasonable or
not, I believe they are erroneous as a matter of law.
Thus, as the D.C. Circuit already concluded in its ear-
lier decision, DuPont, “by making unilateral changes to
Beneflex after the expiration of the CBAs, maintained
the status quo expressed in the Company’s past prac-
tice,”78 which warrants a conclusion that the changes
were lawful under the Supreme Court’s decision in Katz.
Two other considerations deserve further comment
here.
First, my colleagues disregard the fact that parties have
a particular need for certainty and predictability, which
the Supreme Court emphasized in First National
Maintenance,79 when dealing with medical benefits like
those at issue here. I do not at all suggest that because of
the importance of medical benefits, changes involving
such benefits warrant a departure or exception from the
bargaining obligations imposed by our statute. If any-
thing, the importance of these benefits—no less than
wages—warrants vigilance by the Board to ensure that
parties satisfy their bargaining obligations. However, I
believe the Board should recognize that the Katz hold-
ing—permitting unilateral employer actions that do not
constitute a “change” because they are similar in kind
and degree to actions taken previously—is sufficiently
flexible to accommodate actions that require advance
planning and involve significant complexity, provided
the employer acts consistently with its past practice. In
the instant case, these considerations are especially rele-

74 Id. at 67.
75 Katz, 369 U.S. at 746.
76 E.I. DuPont de Nemours, Louisville Works, 355 NLRB at 1084;
E.I. DuPont de Nemours & Co. (Edge Moor), 355 NLRB at 1096.
77 682 F.3d at 67–70.
78 Id. at 68.
79 See text accompanying fn. 72, supra.
vant, given the existence of fixed annual enrollment pe-
riods, the participation by represented employees in ben-
efit plans that applied throughout the company, and the
lack of certainty when ongoing negotiations would con-
clude.80
Second, any concerns about the union being excluded
from bargaining over actions that are consistent with past
practice can be easily addressed. In fact, they have al-
ready been addressed by Congress in Section 8(a)(5) of
the Act, by the Supreme Court in Katz and other cases,
and by the Board in many decisions. Under existing law,
even when an employer’s past practice permits the em-
ployer to take the same or similar actions unilaterally
under Katz (i.e., without first giving its union notice and
the opportunity for bargaining), the employer is required
under Section 8(a)(5) to engage in bargaining over the
same subject matter—indeed, over the actions being tak-
en unilaterally—upon request by the union. This duty to
engage in bargaining upon request over mandatory sub-
jects, which includes matters that may be unilaterally
implemented by an employer under Katz, is completely
unaffected by any past practice, and an employer’s re-
fusal to engage in such bargaining clearly constitutes a
violation of Section 8(a)(5).
As to this last issue, it is ironic that my colleagues
have insisted on completely overhauling the Act’s treat-
ment of bargaining obligations in the instant case. The
record contains some suggestion that the Union at
DuPont’s Louisville plant requested bargaining over the
potential Beneflex changes, and DuPont refused to en-
gage in such bargaining in reliance on DuPont’s past
practice described above. Such a refusal would clearly
constitute a violation of Section 8(a)(5), not because it is
a unilateral “change” under Katz, but rather because it
violates an employer’s separate duty to bargain upon
request regarding any mandatory subject, and this sepa-
rate duty is completely unaffected by any past practice.81
Unfortunately, perhaps in the Board’s zeal to use this
case to substantially reformulate what constitutes an un-
lawful unilateral “change” within the meaning of Katz,
this case was litigated solely on this basis. Similarly, the
D.C. Circuit’s remand is limited to the Board’s treatment
of what constitutes a unilateral “change” under Katz.
Thus, although I believe the record might support the
existence of a refusal-to-bargain violation by DuPont, in

80 My colleagues minimize the fact that changes were also limited
with regard to timing: they were permitted only during the annual
enrollment period. DuPont remand, 682 F.3d at 68.
81 See fns. 11, 23, 35 & 39 and accompanying text supra. As noted
previously, the employer’s conventional duty to engage in bargaining
upon request is subject to certain other potential exceptions, but is
unaffected by past practice. See fn. 23, supra.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mistaken reliance on past practice, when the Union in
Louisville requested bargaining over the Beneflex
changes, this issue is not presently before the Board.
CONCLUSION
I have stated that “when changing existing law, the
Board should first endeavor to do no harm: we should
be vigilant to avoid doing violence to undisputed, dec-
ades-old principles that are clear, widely understood, and
easy to apply.”82 My colleagues take a well-known word
that the Board and the courts (for the most part) have
consistently interpreted, and that most people under-
stand—the word change—and instead of simply compar-
ing what the employer plans to do now, against what it
did in the past, my colleagues require a detailed exami-
nation of past contracts going back years, perhaps dec-
ades, to examine what contracts were in effect at what
times, what employer actions occurred when, whether
the past actions were taken pursuant to a management
rights clause or other contract language, and possibly
whether the past actions predated the earliest contract.
In my view, this makes no sense, and it is unsupported
by our statute and contrary to the Supreme Court’s Katz
decision. As stated at the outset, in contrast to my col-
leagues’ approach, I believe this case involves a simple
question with a straightforward answer. Under Katz, an
employer must provide notice and the opportunity for
bargaining before making a “change” in employment
matters, and bargaining is not required when no
“change” has occurred. Where, as here, the employer
takes actions that are not materially different from what
has been done in the past, no “change” has occurred and
the employer’s unilateral actions do not violate Section
8(a)(5) of the Act.
Again, under existing law, even when new actions tak-
en by the employer are consistent with past practice, this
leaves unaffected the union’s right to request bargaining
regarding all mandatory subjects (including actions the
employer may lawfully take unilaterally), and I agree
with the well-established principle that the employer
remains bound by its duty to engage in such bargaining,
without regard to any practice that may have existed.83
For these reasons, I believe DuPont did not violate the
Act by making the changes described above without
providing advance notice and the opportunity for bar-
gaining. Accordingly, I respectfully dissent from the
majority’s finding that DuPont violated Section 8(a)(5).

82 Purple Communications, Inc., 361 NLRB No. 126, slip op. at 18
(2014) (Member Miscimarra, dissenting) (emphasis added).
83 See fns. 11, 23, 35 & 39, supra, and accompanying text. Again,
the employer’s conventional duty to engage in bargaining upon request
is subject to certain other potential exceptions, but is unaffected by past
practice. See fn. 23, supra.
Dated, Washington, D.C. August 26, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
with Paper, Allied-Industrial, Chemical, and Energy
Workers International Union and its Local 5-2002 (the
Union) by making unilateral changes to the benefits of
unit employees during periods when the parties are en-
gaged in negotiations for a collective-bargaining agree-
ment and have not reached impasse. The unit is:
All employees employed by [the Respondent] at its
Louisville Works, Louisville, Kentucky, including
powerhouse and refrigeration plant employees, chief
operators, shift leaders, fire department employees, caf-
eteria employees, and counter attendants, but excluding
all office clerical employees, chemical supervisors,
technical engineers, assistant technical engineers,
draftsmen, chemists, nurses and hospital technicians,
general foremen, foremen, fire chief, guards, and all
other supervisors and professional employees as de-
fined in the Act.
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, before implementing any changes in your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain collectively and in
E.I. DU PONT DE NEMOURS 29
good faith with the Union as your exclusive bargaining
representative.
WE WILL, upon request of the Union, restore the unit
employees’ benefits under the Beneflex package of bene-
fit 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 agree-
ment or a valid impasse, or until the Union has agreed to
changes.
WE WILL make all affected employees whole for any
losses that they may have suffered as a result of the uni-
lateral implemented changes in benefits in the manner set
forth in the remedy section of the decision.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 9 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.
E.I. DU PONT DE NEMOURS & COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/09–CA–040777 or 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 SE, Washington, D.C.
20570, or by calling (202) 273–1940.
APPENDIX B
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
with the United Steel, Paper and Forestry, Rubber, Man-
ufacturing, Energy, Allied Industrial and Service Work-
ers International Union (U.S.W.), and its Local 4-786
(formerly Paper, Allied-Industrial, Chemical and Energy
Workers International Union (PACE) and its Local 2-
786) (the Union) by making unilateral changes to the
benefits of unit employees during periods when the par-
ties are engaged in negotiations for a collective-
bargaining agreement and have not reached impasse.
The unit is:
All employees of the Edge Moor Plant with the excep-
tion of the Administrative Secretary to the Plant Man-
ager, Human Resources Assistant, Technologists
(Training, Planning, DCS), Work Leader, Nurses, sala-
ry role employees exempt under the Fair Labor Stand-
ards Act, and supervisory employees with the authority
to hire, promote, discharge, discipline or otherwise ef-
fect changes in the status of employees or effectively
recommend such action.
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, before implementing any changes in your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain collectively and in
good faith with the Union as your exclusive bargaining
representative.
WE WILL, upon request of the Union, restore the unit
employees’ benefits under the Beneflex package of bene-
fit plans to the terms that existed prior to the unlawful
unilateral changes that were implemented on 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.
WE WILL make all affected employees whole for any
losses that they may have suffered as a result of the uni-
lateral implemented changes in benefits in the manner set
forth in the remedy section of the decision.
WE WILL compensate employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file with the Regional Director for
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Region 4 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.
E.I. DU PONT DE NEMOURS & COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/09–CA–040777 or 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 SE, Washington, D.C.
20570, or by calling (202) 273–1940.