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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO-CLC, and UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS LOCAL 4-786, Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 07-126 (JJF) ) v. ) ) E.I. DUPONT DE NEMOURS AND ) COMPANY, ) Defendant. ) ____________________________________) PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION FOR JUDGMENT ON THE PLEADINGS SUSAN E. KAUFMAN (DSB # 3381) Heiman, Gouge & Kaufman, L.L.P. 800 King Street, Suite 303 Wilmington, DE 19801 Telephone: (302) 658-1800/Facsimile: (302) 658-1473 [email protected] JEREMIAH A. COLLINS JENNIFER L. HUNTER Bredhoff & Kaiser, P.L.L.C. 805 Fifteenth St., NW Washington, D.C. 20005 Telephone: (202) 842-2600/ Facsimile: (202) 842-1888 [email protected] / [email protected] Counsel for Plaintiffs United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Local 4-786 Dated: September 4, 2007

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TABLE OF CONTENTS Page Introduction............ ..........................................................................................................1 I. The Sole Claim Made In The Grievance Is That DuPont Violated The CBA By Making Unilateral Changes In Its Benefit Plans. DuPont Has Conceded That Such A Claim Is Arbitrable. .................................................................................................2 Even If The Grievance Included Additional Claims, As DuPont Mistakenly Contends, The Claim That DuPont's Unilateral Plan Amendments Violate The CBA Still Would Be Arbitrable. .......................................................................................6

II.

Conclusion.............. .......................................................................................................13

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TABLE OF AUTHORITIES CASES AT&T Techs. v. Communications Workers of Am., 475 U.S. 643 (1986)..................7, 8, 13 E.I. DuPont de Nemours & Company v. Ampthill Rayon Workers, Inc., No. 3:07cv52 (E.D. Va.) ..............................................................................................12 Groves v. Ring Screw Works, 498 U.S. 168 (1990)...........................................................12 Local 232, Allied Indus. Workers v. Briggs & Stratton Corp., 837 F.2d 782 (7th Cir. 1988) .........................................................................................9 Lockheed Corp. v. Spink, 517 U.S. 882 (1996)....................................................................5 PDG Chem. Inc. v. Oil, Chem. & Atomic Workers Int'l Union, 164 F. Supp. 2d 856 (E.D. Tex. 2001).........................................................................10 Paperworkers v. Misco, 484 U.S. 29 (1987)........................................................................7 Pennwalt Corp. v. Local 370, Int'l Union of Elec., Radio & Mach. Workers, No. 88-2094, 1988 WL 149181 (D.N.J. Aug. 25, 1988) ............................................10 RCA Corp. v. Local 241, Prof'l & Technical Eng'rs, 700 F.2d 921 (3d Cir. 1983).....................................................................................9, 11 Schneider Moving & Storage Co. v. Robbins,466, U.S. 364, 371-72 (1984) ......................7 Schweizer Aircraft Corp. v. Local 1752, Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 29 F.3d 83 (2d Cir. 1994)............................. passim United Food & Commercial Workers, Local 17A v. Fresh Mark, 81 Fed. Appx. 23 (6th Cir. 2003)..................................................................................9 United Food & Commercial Workers Union, Local 770 v. Geldin Meat Co., 13 F.3d 1365 (9th Cir. 1994) .........................................................................................9 United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960)...............................................................................................7, 8, 9

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO-CLC, and UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS LOCAL 4-786, ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, ) Civil Action No. 07-126 (JJF) ) vi. ) ) E.I. DUPONT DE NEMOURS AND ) COMPANY, ) ) Defendant. ) ____________________________________)

PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION FOR JUDGMENT ON THE PLEADINGS Introduction Constrained by caselaw too well-settled to ignore, DuPont's Opposition to Plaintiffs' Motion for Judgment on the Pleadings ("DuPont's Opposition") appears to acknowledge that a grievance "merely challeng[ing] DuPont's right to make unilateral changes to its benefit plans" presents an arbitrable dispute. DuPont's Opposition at 3. DuPont similarly concedes that a grievance concerning a benefit plan is arbitrable if it is "directed solely at the employer's `alleged refusal to comply with the CBA and . . . focused on the meaning of the CBA language.'" Id. at 17-18 (quoting Schweizer Aircraft Corp. v. Local 1752, Int'l Union, United Auto.,

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Aerospace & Agric. Implement Workers of Am., 29 F.3d 83, 86 (2d Cir. 1994)). DuPont's attempt to resist arbitration in this case now rests entirely on its contention that Local 4-786's grievance is not of such a nature. See DuPont's Opposition at 3, 13-14. But, as we explain in Part I, it is: the grievance filed by the Local Union presents precisely the kind of claim that DuPont concedes is arbitrable. Furthermore, as we show in Part II, even if that arbitrable claim were, as DuPont maintains, "intertwined" with other issues that are not arbitrable ­ which is not the case ­ DuPont's argument still would go nowhere: the arbitrable issue (which is in this case the only issue presented by the grievance) would remain arbitrable. DuPont therefore has no grounds on which to avoid arbitration.1 I. THE SOLE CLAIM MADE IN THE GRIEVANCE IS THAT DUPONT VIOLATED THE CBA BY MAKING UNILATERAL CHANGES IN ITS BENEFIT PLANS. DUPONT HAS CONCEDED THAT SUCH A CLAIM IS ARBITRABLE.

Although there is not (and could not be) any factual dispute as to the nature of the claim that is asserted in the Local's grievance, DuPont's attempts to mischaracterize the Union's claim make it necessary to place this matter in its proper context. DuPont and the Union are parties to a comprehensive 109-page CBA. Exhibit A.2 That CBA contains an Article IX, entitled "Industrial Relations Plans and Practices," which addresses, inter alia, the "continua[tion]" of the benefits provided through specified DuPont benefit plans. Exhibit A, pp.11-12.

However, Local 4-786 has decided not to pursue its grievance with respect to the MEDCAP Plan and the Dental Plan, see Plaintiffs' Answering Brief in Opposition to Defendant's Motion for Summary Judgment ("Plaintiffs' Opposition") at 11 n.5, so DuPont's arguments about those two plans, see DuPont's Opposition at 2, 5, 6-10, are moot. Unless otherwise specified, all references to exhibits are to the exhibits to the Complaint.
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The parties have a fundamental disagreement as to the meaning of that Article. DuPont suggests that the Article gives it an unlimited right to change the benefit plans, and thus to reduce benefits, as it sees fit, even during the term of the CBA. See DuPont's Opposition at 11 (referring to DuPont's purported "right to amend the plans"). On that interpretation, the elaborate language in Article IX gives employees no rights whatsoever ­ a proposition DuPont embraces when it declares that, with respect to benefit plans, its union-represented employees covered by the CBA have no rights beyond those of employees who are not covered by the CBA. See DuPont's Opposition at 24. Plaintiffs, on the other hand, believe that Article IX is not an empty vessel. Among other things, the Union maintains that the language in the first sentence of the Article referring to DuPont's right to make certain "modifications" gives DuPont a right only to modify a plan's "rules, regulations and interpretations," not to make wholesale reductions in basic benefits such as DuPont announced in August 2006.3 This fundamental substantive disagreement over the meaning of Article IX of the CBA ­ which is not for the Court to resolve, see Plaintiff's Opposition at 8-11 ­ became a live dispute

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The first sentence of Article IX states: All existing privileges heretofore enjoyed by the employees at the said Plant in accordance with the following Industrial Relations Plans and Practices of the Company shall continue subject to the provisions of such Plans and to such rules, regulations, and interpretations as existed prior to the signing of this Agreement and to such modifications thereof as may be hereafter adopted generally by the Company to govern such privileges; provided, however, that as long as any of these Company Plans and Practices is in effect within the Company, it shall not be withdrawn from the employees covered by this Agreement.

Exhibit A, p. 11 (emphasis added). 3

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when, on August 28, 2006, DuPont's Senior Vice President for Human Resources sent an email to employees stating that DuPont had decided to make "important changes to our U.S. employee benefits offering," and specifying the unilateral benefit reductions that DuPont had decided to make. See Exhibit B. Local 4-786 filed a grievance with respect to DuPont's action. The grievance was explicit in stating that what the Local Union was challenging were the "announced changes" described in "the . . . email . . . sent . . . by [the] Senior Vice President­Human Resources," which was "attached [to and] incorporated [into]" the grievance. Exhibit D. The grievance alleged, inter alia, that the benefit changes announced in the email, both in "the[ir] application to [active employees]" and "[w]ith respect to new hires," were "not permitted `modifications'" within the meaning of Article IX, id., and that "these announced changes" violated other provisions of Article IX as well, id. See Plaintiffs' Opposition at 7. The remedy sought by the grievance was to "[c]ease and desist from making the announced changes." Exhibit D. It thus could not be clearer that the grievance is precisely of the kind that DuPont has conceded is arbitrable: it "challenges DuPont's right to make unilateral changes to its benefits plans," DuPont's Opposition at 3, and is directed "at the employer's `alleged refusal to comply with the CBA and [is] focused on the meaning of the CBA language,'" id. at 13, 17-18. DuPont asserts, however, that the grievance also presents additional claims, which DuPont characterizes as involving "interpret[ation of] the plan," id. at 11, and which it asserts are "within the exclusive province of the plan administrator for each plan," id.; see also id. at 13-14 (asserting that, "[b]y its terms, the grievance necessarily implicates questions of plan interpretation . . . [which] the Union agreed would be within the sole authority of the plan administrators of the various plans"). Even if DuPont's characterization of the grievance as

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presenting such additional claims were correct, the grievance still would be arbitrable, as we show infra at 6-12. But as a matter of undisputed fact, DuPont's characterization of the grievance is not correct. DuPont fastens on the word "application" that appears in the grievance, and pretends that the grievance alleges that the plan administrators have somehow erred in making decisions about how to "apply" the benefit changes. See DuPont's Opposition at 3, 11, 13. But that argument is no more than a play on words. The grievance is absolutely explicit in stating that what the union challenges are the benefit changes as announced by DuPont's Senior Vice President on August 28, 2007 ­ nothing more and nothing less. See Exhibit D, quoted supra at 4. In claiming that the changes as thus announced violate the CBA both as they "appl[y]" to current employees and as they apply to new hires, the grievance does not allege that the plan administrators have taken some action affecting benefits that is different from what the Senior Vice President decreed in the August 28 email. Rather, the grievance simply challenges the "announced changes" that are specifically described in the email, and seeks as a remedy that DuPont "[c]ease and desist from making the announced changes." Exhibit D. Thus, the grievance complains of actions taken by an employer as the sponsor of benefit plans (not actions taken by plan administrators as fiduciaries4), which the August 28 email acknowledges constitute "changes to [DuPont's] benefits offering," see Exhibit B (not "interpretations" of the plans), and which the grievance alleges violates the CBA (not the terms of the plans themselves). In the final analysis, there can be no real debate about what Local 4-786 is requesting to arbitrate. Local 4-786 is the master of its own grievance and of its request for an order

"Plan sponsors who alter the terms of a[n ERISA] plan do not fall into the category of fiduciaries." Lockheed Corp. v. Spink, 517 U.S. 882, 890 (1996).

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compelling arbitration. Local 4-786 represents to this Court without qualification that it seeks to arbitrate only whether DuPont's unilateral plan changes, as announced in the August 28, 2006 email, violate the CBA. We believe that the grievance makes it perfectly clear that the Local Union does not seek to present any other issue to the arbitrator. But if there were any uncertainty on that score, the Court's order could provide specifically that DuPont's obligation to arbitrate this matter extends only to the contention that the August 28, 2006 changes violate the CBA. DuPont's professed concern (made of whole cloth) that the union is seeking to arbitrate some other issue would thereby be mooted. In sum, DuPont's concessions as to the kinds of benefit issues that are arbitrable leave DuPont with no argument against arbitrating what Local 4-786 seeks to arbitrate. II. EVEN IF THE GRIEVANCE INCLUDED ADDITIONAL CLAIMS, AS DUPONT MISTAKENLY CONTENDS, THE CLAIM THAT DUPONT'S UNILATERAL PLAN AMENDMENTS VIOLATE THE CBA STILL WOULD BE ARBITRABLE.

As we have shown, see Plaintiffs' Brief in Support of Motion for Judgment on the Pleadings ("Plaintiffs' Opening Brief"), and as DuPont now appears to recognize, a grievance complaining that an employer has violated a CBA in making changes to its benefit plans "represents a quintessential arbitrable dispute." Schweizer Aircraft, supra, 29 F.3d at 86. Even if DuPont were correct that Local 4-786's grievance, which unquestionably presents such a dispute, also presents other disputes ­ or, as DuPont sometimes puts it, that the grievance is "inextricably intertwined with" or "implicates" other issues, see DuPont's Opposition at 2, 6, 13, 15, 16 ­ DuPont offers no reasoning, much less any authority, to support the notion that such "intertwin[ing]" would render this otherwise "quintessential[ly] arbitrable" dispute nonarbitrable.

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It would not. Where, as here, a dispute arises concerning alleged violations of a CBA, the national labor policy favors arbitration as the means of resolving that dispute, not for some slight or technical reason, but as "[a] major factor in achieving industrial peace." United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 577-78 (1960). Grievance arbitration is "at the very heart of the system of industrial self-government [through which] meaning and content are given to the [CBA]," id. at 581;5 and, in resolving a grievance under a CBA, "[t]he labor arbitrator performs functions which are not normal to the courts; the considerations which help him fashion judgments may indeed be foreign to the competence of courts." Id. "The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. . . . The ablest judge [to say nothing of the ablest employer-appointed plan administrator] cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed." Id. at 582. Thus, "[the] presumption of arbitrability for labor disputes recognizes the greater institutional competence of arbitrators in interpreting collective-bargaining agreements, `furthers the national labor policy of peaceful resolution of labor disputes and thus best accords with the parties' presumed objectives in pursuing collective bargaining.'" AT&T Techs. v. Communications Workers of Am., 475 U.S. 643, 650 (1986)(quoting Schneider Moving & Storage Co. v. Robbins,466, U.S. 364, 371-72 (1984)). Where, as here, a dispute between labor and

See also Paperworkers v. Misco, 484 U.S. 29, 38 (1987) ("[I]t must be remembered that grievance and arbitration procedures are part and parcel of the ongoing process of collective bargaining. It is through these processes that the supplementary rules of the plant are established").

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management concerns the substantive provisions of a CBA that contains a broad arbitration clause, those weighty interests dictate that the dispute must be remitted to arbitration; and those interests cannot be set aside merely because a grievance is said to "implicate" additional matters that are said to be "intertwined with" the central arbitrable dispute over whether the employer has breached the CBA. Rather, as discussed in Plaintiff's Opening Memo at 5-6, the governing law dictates that "only the most forceful evidence of a purpose to exclude [a] claim from arbitration can prevail." AT&T Techs., 475 U.S. at 650 (quoting Warrior & Gulf, 363, U.S. at 584-85). DuPont presents no evidence that the parties' intent is to exclude from arbitration a dispute concerning breach of a CBA that is itself "quintessentially arbitrable," Schweizer, supra, merely because that arbitrable dispute supposedly "implicates" additional issues such as the ones DuPont claims are present here. Indeed, DuPont is hard-pressed even to identify the issues it believes are "implicated by" or "inextricably intertwined with" the claim asserted in the grievance, and nothing in DuPont's discussion of those issues provides any basis for overcoming the powerful presumption that Local 4-786's grievance alleging breach of the CBA is arbitrable. DuPont states that it has "taken various steps . . . to implement the plan amendments," such as "communicat[ing] . . . information," DuPont's Opposition at 15-16; but DuPont does not identify any dispute that the grievance presents in connection with those actions apart from the arbitrable dispute as to the permissibility under the CBA of the plan amendments themselves. Similarly, DuPont states again and again that the plan administrators will have to make determinations as to "eligibility for benefits" based on the challenged amendments, see id. at 2, 3, 6, 11, 13, 14; and DuPont states that this will require the administrators to "interpret the plan," id. at 11; see also id at 13-

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14 (asserting that the grievance "necessarily implicates questions of plan interpretation" which would require the arbitrator to "interpret the plan documents"). But the terms of the plan changes at issue are perfectly clear and are spelled out in the August 28 email; the only dispute is as to whether the plan amendments comply with the CBA, not whether the plan administrators are interpreting the amendments correctly. Thus, this is not, as DuPont would have it, a situation in which a union is seeking to compel arbitration with respect to "matters that are within the scope of the plan administrators' `final and binding' authority." DuPont's Opposition at 13. As we have explained, the appellate decisions cited by DuPont in which certain benefit claims were held not to be arbitrable, see id. at 11-12, 14, involved benefit decisions of the kind routinely made by plan administrators, and the plaintiffs in those cases were not contending that the CBA imposed any substantive requirements with respect to those benefit decisions beyond the requirements contained in the plans themselves. See Plaintiffs' Opening Brief at 13 n.6; Plaintiff's Opposition at 15-18. The cases cited by DuPont thus are distinguishable from ­ indeed, they explicitly distinguish ­ situations such as the one presented here, in which a grievance claims that the terms of a plan as amended by the employer fail to comply with provisions of a CBA. Id. All of the appellate decisions involving grievances alleging that a plan change violated provisions of a CBA rather than of the plan itself have found such grievances to be arbitrable. See Schweizer Aircraft, supra; RCA Corp. v. Local 241, Prof'l & Technical Eng'rs, 700 F.2d 921, 925 (3d Cir. 1983); United Food & Commercial Workers, Local 17A v. Fresh Mark, 81 Fed. Appx. 23 (6th Cir. 2003); United Food & Commercial Workers Union, Local 770 v. Geldin Meat Co., 13 F.3d 1365 (9th Cir. 1994); Local 232, Allied Indus. Workers v. Briggs & Stratton Corp., 837 F.2d 782 (7th Cir. 1988).

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Accord, Pennwalt Corp. v. Local 370, Int'l Union of Elec., Radio & Mach. Workers, No. 882094, 1988 WL 149181, at *3 (D.N.J. Aug. 25, 1988).6 In effect, DuPont is arguing that a decision by an employer to change its benefit plans in a way that is alleged to violate a CBA, which presents a plainly arbitrable dispute, should be deemed nonarbitrable merely because the implementation of that decision will be carried out by plan administrators whose functions include making decisions on individual claims for benefits. But an employer's decision to change the terms of a benefit plan always leads to actions by plan administrators to implement what the employer has dictated, and it will always be the case that the plan administrators, in implementing those dictates, will provide a claims procedure.7 If DuPont's theory were correct, all of the numerous cases that hold grievances challenging plan changes to be arbitrable-- including Schweizer Aircraft, which DuPont acknowledges was DuPont relies heavily on a district court decision from the Eastern District of Texas, PDG Chem. Inc. v. Oil, Chem. & Atomic Workers Int'l Union, 164 F. Supp. 2d 856, 864 (E.D. Tex. 2001). See DuPont's Opposition at 11-12. That decision is poorly reasoned and has not been cited by any other court. It is in any event distinguishable and sui generis. In PDG, the union had agreed to the terms of a retirement plan specifying how employees' rates of pay would determine their pension benefits, and the union also had agreed to the method by which the pay rates would be calculated. See 164 F. Supp. 2d at 859-60. Without contending that any of those agreed terms had not been followed, see id. at 863 n.14, the union argued that the plan was more favorable to salaried workers than to the union's members, and the union claimed that this was contrary to an agreement which provided that the same terms would apply to both groups, see id. at 863. Thus, in effect, the union was seeking through the grievance to force a change in the very plan terms to which it had agreed. In addition, the CBA in the PDG case stated that "the terms of the Plan [were to be] at the sole discretion of the company," id. at 862, which is not the case here, see supra at 3 & n.3; and one of those terms was that the decisions of the plan administrators would be "final, binding and conclusive" not only with respect to matters of plan interpretation, but with respect to "any controversy or questions relating to . . . benefits payable to any Member," 164 F. Supp. 2d at 862. The language in the DuPont plans referring to the authority of plan administrators to make final and binding decisions is much narrower; for example, the Savings and Investment Plan states that decisions of the plan administrators "shall be final [only] with respect to any questions arising as to the interpretation of this Plan." Exhibit B to Declaration of Mary Jo Anderson, at 40 (emphasis added). ERISA requires that every covered plan provide such a procedure. See Plaintiffs' Opposition at 11-13.
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rightly decided ­ would have been wrong, because the matters held to be arbitrable in those cases "implicated" the actions of plan fiduciaries to at least as great an extent as DuPont claims is present here. Indeed, in Schweizer Aircraft, the action grieved by the union was an individual benefit determination that had been made by the plan administrators, see Schweizer Aircraft, 29 F.3d at 84; the Second Circuit nevertheless held the matter to be arbitrable because the plan provisions on which the administrators had relied were alleged to be inconsistent with a CBA. Id. at 86. And RCA Corp., supra, also involved actions by plan administrators, see 700 F.2d at 923, which were found to be arbitrable because they were alleged to be inconsistent with the requirements of a CBA, id. at 925. Thus, DuPont's contention that its internal plan claims procedures ­ administered by DuPont's own designees ­ constitute the exclusive process for determining whether DuPont has breached its CBA with the Local Union is completely lacking in support. Indeed, it is difficult to take that contention seriously when it is recognized that the union cannot even invoke the plan claims procedures, see Plaintiffs' Opposition at 14-15, and that there is no guarantee ­ and indeed, no likelihood ­ that a contention by a plan participant that a plan amendment violates the CBA would even be entertained (much less entertained fairly) by DuPont's plan administrators. In that connection, far from suggesting that its plan administrators are free to disregard plan changes announced by their corporate superiors if they believe that the changes conflict with a CBA, DuPont has taken the position that all "benefit eligibility determinations" made by the plan administrators must be "consistent with the terms of the plans, and any amendments thereto." DuPont's Memorandum in Support of its Motion for Summary Judgment ("DuPont's Opening Memo") at 6 (emphasis added). In another case challenging the August 2006 benefit changes, DuPont has explicitly stipulated that "[t]he Plan Administrator's eligibility determinations must

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be made consistent with the terms of [each Plan], including any amendments; the Plan Administrator cannot ignore Plan amendments because they are inconsistent with the terms of a collective bargaining agreement." Stipulations filed in E.I. DuPont de Nemours & Company v. Ampthill Rayon Workers, Inc., No. 3:07cv52 (E.D. Va.), at ¶¶11, 17, 22, 27, 32 (emphasis added) (copy attached). Contrary to those representations, DuPont now suggests that the plan administrators could consider whether a plan amendment complies with the CBA. See DuPont's Opposition at 19. But that suggestion is empty. The Summary Plan Descriptions ("SPDs") which contain the claims-review provisions on which DuPont's argument against arbitrability is based do not state that the plan administrators have the authority to set aside a plan amendment on the ground that the amendment conflicts with a CBA ­ much less that the plan administrators (who, we repeat, are appointed by DuPont) will in fact exercise any such authority. On the contrary, DuPont's Plans and SPDs state that the administrators must apply the terms of the Plans and the SPDs as DuPont has written them. See, e.g., the SPD for the Savings and Investment Plan, which states that "the governing documents in the event questions arise" are solely "the E.I. DuPont de Nemours and Company Savings and Investment Plan and the Trustee Agreement between the Company and the Plan Trustee." Exhibit C to Declaration of Mary Jo Anderson, p. 24. 8

This is not to say that a CBA cannot be considered a governing document with which, through litigation under ERISA or under § 301 of the Labor Management Relations Act, plan administrators can be forced to comply. See DuPont's Opposition at 19 (citing cases requiring compliance with governing documents). But that is a very different question from whether the plan administrators themselves possess exclusive and final authority to construe CBA provisions governing a benefit plan. Nothing in ERISA so provides. Nor is there any relevance to the fact that plan participants may be able to sue under ERISA, as well as under § 301, to enforce collectively bargained benefit commitments and to challenge improper plan amendments. See DuPont's Opposition at 19-20. The presumption of arbitrability does not rest on an assumption that, absent arbitration, unions would have no remedy for CBA breaches; the caselaw recognizes that a judicial remedy would be available, see Groves v. Ring Screw Works, 498 U.S. 168 (1990), 12

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In these circumstances, even if there were room to assert that DuPont's plan administrators theoretically might entertain a contention that a plan amendment conflicts with a CBA, there is nothing ­ and certainly not "the most forceful evidence," AT&T Techs., 475 U.S. at 650 ­ to suggest that Local 4-786 has agreed to give the plan administrators appointed by the Company the exclusive (and, as DuPont would have it, the "final and binding") authority to decide whether, in making plan changes such as the ones announced by DuPont's Senior Vice President in August 2006, DuPont has complied with its obligations under a CBA. On the contrary, under the parties' CBA, that authority rests not with DuPont's own officials, but with an impartial arbitrator. CONCLUSION For the reasons stated above and in Plaintiffs' prior submissions, Plaintiffs' Motion for Judgment on the Pleadings should be granted, and the Court should enter an Order compelling DuPont to arbitrate the Local Union's grievance, excepting those portions of the grievance which relate to the MEDCAP and Dental Plans.

but that the national labor policy favors arbitration over litigation, see supra at 7-8. In any event, none of the cases cited at pp. 19-20 of DuPont's Opposition holds that the availability of a judicial forum, or of an internal claims procedure, means that a grievance alleging breach of a CBA is not arbitrable. DuPont's suggestion that the exclusive remedy for the Local Union's grievance lies with the NLRB also is a nonstarter, see Plaintiffs' Opposition at 20-21, as are DuPont's arguments about the DOL ERISA regulations, see id. at 19-20, and DuPont's contention that arbitrating Local 4-786's grievance would convert the arbitrator into an ersatz plan fiduciary, see id. at 19 n. 15.

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Respectfully submitted, /s/ Susan E. Kaufman SUSAN E. KAUFMAN (DSB # 3381) Heiman, Gouge & Kaufman, L.L.P. 800 King Street, Suite 303 P.O. Box 1674 Wilmington, DE 19801 Telephone: (302) 658-1800/Facsimile: (302) 658-1473 [email protected] JEREMIAH A. COLLINS JENNIFER L. HUNTER Bredhoff & Kaiser, P.L.L.C. 805 Fifteenth St., NW Washington, D.C. 20005 Telephone: (202) 842-2600/ Facsimile: (202) 842-1888 [email protected] [email protected] Counsel for Plaintiffs United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Local 4-786

DATED: September 4, 2007

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE ) ) ) ) ) ) ) ) ) Plaintiffs, ) v. ) ) E.I. DuPONT de NEMOURS and ) COMPANY, ) ) Defendant. ) ________________________________________________) CERTIFICATE OF SERVICE I hereby certify that on September 4, 2007, I electronically filed the PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION FOR JUDGMENT ON THE PLEADINGS with the Clerk of Court using CM/ECF which will send notification of such filing(s) to the following: Kathleen F. McDonough, Esquire Potter, Anderson & Corroon, LLP 1313 North Market Street Wilmington, DE 19899 I hereby certify that on September 4, 2007, I have mailed by United States Postal Service, the document(s) to the following non-registered participants: Thomas P. Gies, Esquire Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004-2595 /s/ Susan E. Kaufman Heiman, Gouge & Kaufman, LLP 800 King Street, Suite 303 Wilmington, DE 19801 302-658-1800 [email protected] UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS, INTERNATIONAL UNION, AFL-CIO-CLC, and UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS LOCAL 4-786,

C.A. No. 07-126 (JJF)

Case 1:07-cv-00126-JJF

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