GTE Automatic Electric Incorporated

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1491 (N.L.R.B. 1982)

GTE AUTOMATIC ELECTRIC INCORPORATED
GTE Automatic Electric Incorporated and Office
and Professional Employees International
Union, Local 28, AFL-CIO. Case 13-CA-
17139
May 28, 1982
SUPPLEMENTAL DECISION AND
ORDER
On January 26, 1979, the National Labor Rela-
tions Board issued its Decision and Order' in the
above-entitled proceeding, finding that Respondent
had engaged in unfair labor practices in violation
of Section 8(a)(l) and (5) of the National Labor
Relations Act, as amended, herein called the Act,
and, inter alia, ordering Respondent to cease and
desist from (1) announcing and misrepresenting to
its employees that the "General Telephone & Elec-
tronics Corporation Savings & Investment Plan,"
herein called the Plan, is available only to salaried
nonunion employees, and (2) refusing to bargain
collectively concerning the Plan and related mat-
ters with the Union as the exclusive bargaining rep-
resentative of the employees in the appropriate
unit. The Board then sought enforcement of its
Order in the United States Court of Appeals for
the Seventh Circuit. Thereafter, in June 1979, the
court granted the Board's motion for leave to with-
draw, without prejudice, its application for en-
forcement of its Order, and remanded the proceed-
ing to the Board for reconsideration.
On July 2 and 17, 1979, the Board notified the
parties of the court's action; informed them that the
Board had decided to reconsider the issue of
whether a wrap-up (or zipper) clause, by itself,
constitutes a waiver of the Union's right to bargain
during the term of the contract concerning matters
not specifically covered by the contract; and ad-
vised them that they could submit statements of
position to the Board with respect to this issue.
Such statements were received from Respondent
and the General Counsel.
The Board has reconsidered its Decision in light
of the entire record and the statements of position
and has decided to affirm its previous Decision and
Order, as modified below.
Since at least 1960, the Union has been a party to
a series of collective-bargaining contracts with Re-
spondent which have contained the following
zipper clause:
Article 14-Waiver
The parties acknowledge that during the ne-
gotiations which resulted in this Agreement,
each had the unlimited right and opportunity
to make demands and proposals with respect
i 240 NLRB 297.
261 NLRB No. 196
to any subject or matter not removed by law
from the area of collective bargaining, and
that the understanding and agreements arrived
at by the parties after the exercise of that right
and opportunity are set forth in this agree-
ment. Therefore, the Company and the Union,
for the life of this Agreement, each voluntarily
and unqualifiedly waives the right, and each
agrees that the other shall not be obligated to
bargain collectively with respect to any sub-
ject or matter referred to, or covered in this
Agreement, or with respect to any subject or
matter not specifically referred to or covered
by this Agreement even though such subject
or matter may not have been within the
knowledge or contemplation of either or both
of the parties at the time they negotiated or
signed this Agreement.
Prior to the execution of their latest 3-year bar-
gaining agreement in April 1976, Respondent and
the Union agreed to include the clause therein
without discussion, and, because the Plan had nei-
ther existed nor been contemplated at that time, did
not discuss the Plan or any other similar benefit. In
the fall of 1977, Respondent announced its inten-
tion to, and did, implement the Plan for its non-
union salaried employees but, citing the zipper
clause, rejected the Union's request to bargain con-
cerning the inclusion of the union employees in the
Plan.
In our initial Decision, we found that, during the
term of the contract, Respondent was obligated to
bargain about matters not specifically covered in
the contract or unequivocally waived by the
Union, and that the contractual zipper clause in
issue did not constitute a waiver because the bene-
fit involved was neither in existence nor proposed
at the time and, therefore, could not have been
waived.
Upon reconsideration of the issue, we find that
Respondent may rely on the waiver contained in
its contractual zipper clause, 2 and that said clause
clearly and unequivocally covers the Union's re-
quest to bargain concerning the implementation of
a new benefit. Therefore, because the implementa-
tion of the plan benefiting the nonunion employees
does not constitute a unilateral change of existing
working conditions and because the bargaining his-
tory is completely silent on the matter in issue, Re-
spondent lawfully may refuse to enter into midterm
negotiations concerning the matter. We are of the
opinion that, by permitting Respondent to invoke
the zipper clause as a shield against the Union's
2 The Jacobs Manufacturing Company, 94 NLRB 1214 (1957). enfd 196
F.2d 680 (2d Cir. 1952)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
midterm demand for bargaining over a new benefit,
and by giving literal effect to the parties' waiver of
their bargaining rights, industrial peace and collec-
tive-bargaining stability will be promoted.3
In so concluding we emphasize that Respondent
seeks only to maintain the status quo regarding the
terms and conditions of employment of unit em-
ployees. Significantly, Respondent has not made
unilateral changes that directly and adversely affect
unit employees, with an accompanying effect of
undermining and derogating the Union. Rather, by
relying on the zipper clause for its refusal to dis-
cuss new subjects during the contract term, 4 Re-
spondent attempts nothing more than to have it
and the Union adhere to, and not alter, their con-
tractual commitments and the existing employment
conditions.
By construing the contractual zipper clause to
justify Respondent's actions, we hold only that the
Union has waived its right to require Respondent
to bargain midterm about a new subject matter not
specifically covered by the terms of the existing
contract. Certainly, our decision properly adds and
accords stability and dignity to the parties' collec-
tive-bargaining relationship and the contract nego-
tiated therefrom.
Accordingly, our original findings are amended
as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby amends its original Decision
and Order in this proceeding and orders that the
Respondent, GTE Automatic Electric Incorporat-
ed, Northlake, Illinois, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Board's original Order (240 NLRB 297), as
amended below:
I. Delete paragraphs l(b) and 2(b) and reletter
the remaining paragraphs accordingly.
3 Our holding does not disturb cases involving (1) a party's waiver or
lack of waiver of its right to bargain over specific matters during a con-
tract term because of the negotiating history and surrounding circum-
stances (see, e.g., Proctor Manufacturing Corporation, 131 NLRB 1166
(1961); Unit Drop Forge Division Eaton Yale & Towne Inc., 171 NLRB 600
(1968), enfd. in relevant part 412 F.2d 108 (7th Cir. 1969)); (2) a party
engaging in deceptive conduct during negotiations, so that there is no
conscious or knowing waiver of rights (see, e.g., Conval-Ohio, Inc., 202
NLRB 85 (1973)); or (3) an employer unilaterally changing the employ-
ees' existing working conditions, then using the zipper clause as a
"sword" to justify its refusal to discuss the unilateral changes made to the
status quo (see, e.g., Pepsi-Cola Distributing Company of Knoxville, Tennes-
see, Inc., 241 NLRB 869 (1979)). Chairman Van de Water finds it unnec-
essary to and does not rely on either the Eaton Yale & Towne case, supra,
or the Pepsi-Cola case cited herein.
4 Member Fanning would find that, absent the contractual zipper
clause, Respondent would have been obligated to bargain in good faith
with the Union regarding the Plan conferred on nonunit employees. See,
e.g., Empire Pacific Industries, Inc., 257 NLRB 1425 (1981); The B F:
Goodrich Company, 195 NLRB 914 (1972).
2. Substitute the attached notice for the original
one.
MEMBER JENKINS, dissenting in part:
I would reaffirm our previous conclusion that
the waiver provision in article 14 did not result in
the Union waiving its right to bargain about the
implementation of the Plan for unit employees
during the term of the then-current bargaining
agreement.
In prior Decisions, the Board has considered an
employer's bargaining obligations and the condi-
tions necessary which would privilege the with-
holding from organized employees benefits granted
to unorganized employees. We have uniformly held
that an employer may withhold such benefits from
organized employees only in the context of good-
faith bargaining and in the absence of proof of any
unlawful motive. 5 Under these circumstances the
employer may agree to vary benefits between rep-
resented and unrepresented employees, or withhold
increases pending a finalized agreement. In either
event the employees' Section 7 right to have their
representative act as their collective-bargaining
agent is upheld. This situation is to be contrasted
with that involved here, where an employer refuses
to bargain about such benefits for represented em-
ployees while simultaneously granting them to un-
represented employees. In such cases the Board
previously has found such conduct unlawful. 6
In the present case, the Board has given effect to
a zipper clause so that Respondent may both refuse
to bargain about such benefits for represented em-
ployees and grant them to unrepresented employ-
ees. Respondent contends that the zipper clause
was the product of good-faith negotiations as a
result of which the Union waived all its rights to
midcontract negotiations. Although the Board has
been divided on occasion as to the effect to be
given such clauses, there has been no dispute that
such clauses are to be given no effect where their
application would be repugnant to the basic poli-
cies of our Act. 7
In this case I find that Respondent's application
of this clause to the present situation oversteps em-
ployees' Section 7 rights to such an extent that it is
repugnant to the basic policies of our Act and the
Board should decline to give it such effect. Re-
spondent's contention that the zipper clause re-
leases it from any and all mid-contract bargaining
I See American Telecommunications Corporation, Electromechanical Divi-
sion, 249 NLRB 1135, 1137 (1980); Chevron Oil Company. Standard Oil
Company of Texas Division, 182 NLRB 445, 449 (1970), enforcement
denied 442 F.2d 1067 (5th Cir. 1971); Shell Oil Company, Incorporated.
etc., 77 NLRB 1306 (1948).
6 See L. M. Berry and Company, 254 NLRB 42 (1981); The B F Good-
rich Company, 195 NLRB 914, 915 (1972).
' See, for example, Radioear Corporation, 214 NLRB 362, 364 (1974).
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GTE AUTOMATIC ELECTRIC INCORPORATED
obligations in this situation clearly includes as a
corollary the contention that it be allowed to
engage in discriminatory misconduct. 8 Here, Re-
spondent has accorded a substantial companywide
benefit to unrepresented employees and denied it to
represented employees. The assertion of waiver,
rather than occurring in the requisite context of col-
lective bargaining, as set forth above, was applied
in the exact opposite context-a specific, contem-
poraneous refusal to engage in collective bargain-
ing.
I find no merit in Respondent's reliance on the
bargaining which preceded the execution of the
current bargaining agreement. The Plan was not
discussed during those negotiations, was not con-
templated at the time, and, given that the Plan
originated from Respondent's parent corporation
and was made available to over 40 subsidiaries such
as Respondent, was not even a matter fully within
Respondent's control. 9 As a result the bargaining
history is silent as to the represented employees'
participation or nonparticipation in the Plan.
In view of the above, I conclude that Respond-
ent's interpretation of the zipper clause is inherent-
ly destructive of employees' Section 7 rights, par-
ticularly of the right not to be subject to disparate
treatment due to union activity and the right to
bargain collectively. See N.L.R.B. v. Great Dane
Trailers, Inc., 388 U.S. 26 (1967), and the cases
cited in footnote 5, above. For this reason I would
refuse to give the clause the effect of releasing Re-
spondent from the obligation to bargain over the
Plan. Respondent's misconduct is made particularly
offensive as a result of its announcement, here
found unlawful, that the Plan was being made
available only to Respondent's nonunion salaried
employees.
8 In reaching this conclusion I note that in several of the Decisions
cited above the conduct described was found also to be violative of Sec.
8(a)(3) of the Act. See L M Berry and Company, supra. Chevron Oil
Company, supra In the present proceeding, however, the General Coun-
sel has not included in the complaint nor sought to litigate an allegation
of 8(a)(3) misconduct.
9 Despite statements to the contrary in the announcement, the parent
corporation in fact imposed no restriction on Respondent with respect to
the inclusion of represented employees in such Plan pursuant to collec-
tive bargaining. See GTE Automatic, 240 NL.RB at 298
The majority's conclusory assertion that its posi-
tion aids industrial peace and collective-bargaining
stability and that Respondent should be allowed to
maintain the "status quo" is sophistry. Collective-
bargaining stability is not enhanced by allowing a
party to refuse to engage in collective bargaining.
Industrial peace is not achieved by permitting a
discriminatory status quo. If the policies of the Act
are to be furthered, Respondent should be allowed
to deny represented employees benefits granted
others only pursuant to good-faith collective bar-
gaining. ' 0
Io In view of the above analysis. I find it unnecessary to comment on
the extent to which art 14 otherwisc might ht gisen effect ais a waiver of
bargaining rights
APPENDIX
NOTICE To EMPI OYF FIS
POSTED BY ORDER OF THE
NATIONAl. LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE WtIl. NOT announce and misrepresent to
our employees that participation in our Gener-
al Telephone & Electronics Corporation Sav-
ings & Investment Plan is available only to sal-
aried nonunion employees.
WI WILI. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WII.t. correct our documents and inform
our employees that employees represented by
a labor organization or union may be eligible
for the General Telephone & Electronics Cor-
poration Savings & Investment Plan if a col-
lective-bargaining agreement provides for the
participation of such employees.
GTE AUTOMATIC EI.ECTRIC INCOR-
PORATED
1493