The National Labor Relations Board has upheld DuPont’s 2013 decision to unilaterally implement changes to its companywide retiree medical and dental plans because the unions that protested had waived their right to bargain over those changes.
The September 4, 2019, decision came after a 2-1 vote of members. The NLRB stated in its decision that “the parties’ agreements, bargaining history and past practice, taken together, made clear that [DuPont] was not obligated to bargain with the Unions prior to making these changes, because the Unions had clearly and unmistakably waived their right to bargain over them. The Board majority therefore dismissed the complaint.”
The decision reversed a December 2013 decision by Administrative Law Judge Michael Rosas and offered an indication that the Board could move closer to decisions by the D.C. Circuit Court of Appeals, which has tended to require less evidence that the unions had waived their bargaining rights.
“We are pleased with the decision by the NLRB on Sept. 4. We feel the decision is sound and the result is right,” said Gregg Schmidt, spokesman for Wilmington-based Corteva Agriscience, which assumed responsibilities for the $23.4 billion DuPont U.S. Pension and Retirement Plan as part of its separation from DowDuPont on June 1, 2019.
DuPont has company-wide medical and dental plans that apply to active members of the bargaining unit and retirees. Three facilities were involved in the case: Richmond, Nashville and Louisville, where employees are represented by different locals of the International Brotherhood of the DuPont Workers. Each unit has had its own collective bargaining agreement and separate bargaining histories with DuPont, but at all those locations the unions have agreed to participate in the companywide plans.
In 2013, DuPont ceased providing Medicare-eligible retirees (MERs) medical and dental coverage through the plans, and instead provided them with funds to purchase secondary medical and dental health benefits through a health reimbursement agreement. This change applied to current bargaining unit members when they become MERs. The local unions were provided advance notice of the changes and objected; DuPont unilaterally implemented those changes pursuant to its reservation-of-rights authority.
According to published reports, the Board signaled its inclination to reconsider what a collective bargaining agreement must contain to meet the “clear and unmistakable” waiver standard when an employer seeks to modify or terminate an existing benefit plan, suggesting in a footnote that a CBA need only make a brief, general reference to a benefit plan that includes a “reservation-of-rights” clause, rather than an express reference to that clause or to plan documents of which it is a part.
