E.I. Du Pont De Nemours & Co. v. National Labor Relations Board
401 U.S. App. D.C. 172
| D.C. Cir. | 2012Background
- Du Pont offered Beneflex benefits with an annual open enrollment; Beneflex Medical had its own enrollment period.
- Plan documents reserved the Company's right to change or discontinue the plan, and to change price or coverage only during enrollment unless third-party coverage was curtailed.
- Du Pont repeatedly made Beneflex changes (premiums, coverage, options) for union and non-union employees alike, since at least 1996.
- CBAs existed with Louisville, KY and Edgemoor, DE unions; Beneflex was available to employees under those CBAs; reservations of rights were in the plans.
- After CBAs expired (2002 and 2004 respectively) and while negotiations for successors continued, Du Pont unilaterally implemented Beneflex changes ahead of the annual enrollment period.
- The NLRB held that unilateral changes during ongoing negotiations violated §8(a)(5); Du Pont challenged the Board’s reliance on past practice and the Courier-Journal framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether unilateral Beneflex changes during hiatus were lawful under past practice. | Du Pont: changes were within established past practice. | Board: past practice did not arise from an expired management-rights clause and thus not justify unilateral changes. | Yes; changes were permissible as continuation of past practice. |
| Whether past practice surviving expiration justifies unilateral changes. | Past practice under expired contracts can survive and authorize unilateral changes. | Past practice must be grounded in practice, not the expired contract itself. | Yes; past practice may survive expiration to justify unilateral changes. |
| Whether Board departed from precedent without reasoned justification. | Board deviated from Courier-Journal without explanation. | Board relied on distinguishing facts between cases. | Board failed to provide reasoned justification; remand required to conform or justify deviation. |
| Remand remedy—vacate or remand with instructions. | Court should vacate unlawful order and remand. | Remand suffices for Board to cure misapplication. | Court remands for Board to conform to Capitol Ford/Beverly Health precedent. |
Key Cases Cited
- NLRB v. Katz, 369 U.S. 736 (U.S. 1962) (unilateral changes during bargaining violate §8(a)(5) by undermining negotiations)
- Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (U.S. 1991) (bargaining difficult when employer can alter terms during negotiations)
- Courier-Journal, 342 N.L.R.B. 1093 (NLRB 2004) (established past practice can justify unilateral changes during hiatus when within scope of practice)
- Capitol Ford, 343 N.L.R.B. 1058 (NLRB 2004) (past practice not dependent on continued CBA; can justify unilateral action during hiatus)
- Beverly Health & Rehab. Servs., 297 F.3d 468 (6th Cir. 2002) (past practice under management-rights clause may survive contract expiration)