Michigan Bell Telephone Co.

National Labor Relations Board - Board Decisions

Feb 11, 1992

306 N.L.R.B. 281 (N.L.R.B. 1992)

281
306 NLRB No. 54
MICHIGAN BELL TELEPHONE CO.
1 On January 3, 1991, Administrative Law Judge Elbert D. Gads-
den issued the attached decision. The Respondent and the General
Counsel each filed exceptions, supporting briefs, and answering
briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 Milwaukee Spring Division, 268 NLRB 601, 602 (1984), affd.
765 F.2d 175 (D.C. Cir. 1985).
3 See Johnson-Bateman Co., 295 NLRB 180 (1989).
4 No provision of the contract other than the zipper clause is as-
serted to have effected such a waiver.
5 460 U.S. 693, 708 (1983) (footnote omitted).
Michigan Bell Telephone Company and Commu-
nications Workers of America, AFL–CIO. Case
7–CA–29252
February 11, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present the question of whether, during the term of a
contract, the Respondent’s unilateral implementation of
a substance abuse policy after bargaining to impasse
with the Union violated Section 8(a)(5) and (1) of the
Act.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
After bargaining to impasse with the Union, the Re-
spondent in May 1989 implemented a substance abuse
policy that included discipline of employees who re-
fused to submit to drug testing or whose test results
were positive. The judge found that the Respondent’s
implementation of this policy violated Section 8(a)(5)
and (1) and (d) of the Act.
The contract between the parties, effective from Au-
gust 10, 1986, to August 12, 1989, contained no provi-
sion concerning or referring to drug testing. The con-
tract also contained a zipper clause which provided,
inter alia, that the agreement was ‘‘in final settlement
of all demands and proposals made by either party dur-
ing recent negotiations’’ and that the parties
‘‘intend[ed] thereby to finally conclude contract bar-
gaining throughout its duration.’’ The parties stipulated
at the hearing that neither the substance abuse policy
nor subject matters related to it were raised or dis-
cussed during negotiations over the 1986–1989 con-
tract.
The judge found that the zipper clause did not con-
stitute a clear and unmistakable waiver of the right to
bargain over mandatory subjects not included in the
contract or mentioned during negotiations for the con-
tract. He further found, however, that the zipper clause
could be ‘‘reasonably construed’’ as indicating that all
bargaining, regardless of whether the subject was pre-
viously demanded or proposed, would be precluded
during the term of the contract. Based on this construc-
tion of the zipper clause, the judge found that the Re-
spondent had no right to implement its substance abuse
policy without the Union’s consent after bargaining to
impasse over it during the term of the contract. We do
not agree.
The legal context in which this case arises may be
summarized by the following governing principles:2
Sections 8(a)(5) and 8(d) establish an employ-
er’s obligation to bargain in good faith with re-
spect to ‘‘wages, hours, and other terms and con-
ditions of employment.’’ Generally, an employer
may not unilaterally institute changes regarding
these mandatory subjects before reaching a good-
faith impasse in bargaining. Section 8(d) imposes
an additional requirement when a collective-bar-
gaining agreement is in effect and an employer
seeks to ‘‘modif[y] . . . the terms and conditions
contained in’’ the contract: the employer must ob-
tain the union’s consent before implementing the
change. If the employment conditions the em-
ployer seeks to change are not ‘‘contained in’’ the
contract, however, the employer’s obligation re-
mains the general one of bargaining in good faith
to impasse over the subject before instituting the
proposed change.
As the Respondent concedes, its substance abuse
policy is a mandatory subject of bargaining.3 While the
Respondent implemented its substance abuse policy
during the term of the contract, this policy did not
modify any provision of the contract. Thus, the re-
quirement in Section 8(d) that the Union’s consent be
obtained does not apply. Additionally, the Respondent
did not fail to bargain over the substance abuse policy.
On the contrary, the Respondent bargained to impasse
with the Union before implementing the policy.
Consequently, the Respondent’s implementation of
its substance abuse policy did not violate Section
8(a)(5) unless the Respondent, by agreeing to the zip-
per clause, waived its right to bargain, during the term
of the contract, over mandatory subjects not addressed
in the contract and not raised during bargaining.4 As
noted above, the judge found such a waiver based on
a ‘‘reasonable construction’’ of the zipper clause.
The test governing waiver of statutory rights, such
as the right to bargain over mandatory subjects, how-
ever, is not whether the contract can be reasonably
construed to effect such a waiver. Rather, as the Su-
preme Court stated in Metropolitan Edison Co. v.
NLRB:5
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Angelus Block Co., 250 NLRB 868, 877 (1980) (zipper clause
must meet standard of any other form of waiver); see also Asbestos
Workers Local 27 (Master Insulators), 269 NLRB 719, 721 (1984)
(waiver of employer’s statutory right).
7 The zipper clause’s second sentence, indicating only that the con-
tract ‘‘may be amended at any time by mutual consent,’’ merely reit-
erates a principle embodied in Sec. 8(d) of the Act and provides no
additional insight into the parties’ intent concerning the scope of the
zipper clause regarding matters not raised in the contract or in con-
tract negotiations.
8 The zipper clause here is in marked contrast to the one in GTE
Automatic Electric, 261 NLRB 1491 (1982), which was found to
have clearly and unequivocally waived the union’s right there to re-
quest bargaining concerning a new benefit during the contract term.
The clause there stated that for the life of the contract the parties
voluntarily and unqualifiedly waive[d] the right . . . to bargain col-
lectively with respect to any subject or matter referred to, or covered
in this Agreement, or with respect to any subject or matter not spe-
cifically referred to or covered by this Agreement even though such
subject or matter may not have been within the knowledge or con-
templation of either or both of the parties at the time they negotiated
or signed this Agreement [emphasis added].
Similarly, the zipper clause here lacks the clarity of the one in
Jones Dairy Farm, 295 NLRB 113 (1989), which stated that ‘‘nego-
tiation on matters not covered by this Agreement is to be deferred
until expiration of this Agreement.’’ That language was found to
have waived the employer’s right during the contract term to imple-
ment a condition of employment not covered by the contract.
9 GTE, supra.
10 Ibid.
[W]e will not infer from a general contractual
provision that the parties intended to waive a
statutorily protected right unless the undertaking
is ‘‘explicitly stated.’’ More succinctly, the waiver
must be clear and unmistakable.
The clear and unmistakable waiver test applies
equally to alleged waivers contained in zipper clauses
as it does to those contained in other contractual provi-
sions.6 Accordingly, we cannot adopt the judge’s anal-
ysis finding a waiver here.
Applying the appropriate test, we find that the zip-
per clause here did not waive the Respondent’s right
to bargain during the contract term over mandatory
subjects that were not addressed either in the contract
or in bargaining over the contract. As noted above, the
judge himself found that the zipper clause did not con-
stitute a clear and unmistakable waiver of such a right.
The operative language of the zipper clause states:
This Agreement is agreed upon in final settlement
of all demands and proposals made by either party
during recent negotiations, and the parties intend
thereby to finally conclude contract bargaining
throughout its duration. [Emphasis added.]
We find that this language is ambiguous in that the
term ‘‘thereby’’ may refer to the preceding language
regarding ‘‘all demands and proposals made . . . dur-
ing recent negotiations.’’ So construed, the clause
waives bargaining only with respect to those demands
and proposals that the parties made during contract ne-
gotiations. Further, the presence of the word ‘‘con-
tract’’ in the phrase ‘‘finally conclude contract bar-
gaining’’ may imply that it is only as to contract mat-
ters—not matters outside the contract—that the parties
had concluded bargaining. Although it may not be
clear that the foregoing is the correct interpretation of
the parties’ intent, neither is it clear that the interpreta-
tion given this language by the judge is correct.7 Thus,
we cannot conclude that the zipper clause clearly and
unmistakably waived the parties’ rights to bargain over
mandatory subjects not mentioned in the contract or in
the negotiations preceding the contract.8
Accordingly, as the Respondent’s substance abuse
policy did not modify the parties’ contract and was im-
plemented after bargaining to impasse, and as the zip-
per clause did not clearly and unmistakably waive the
parties’ rights to bargain over mandatory subjects of
bargaining not mentioned in the contract or in negotia-
tions over the contract, we conclude that the Respond-
ent’s postimpasse implementation of its substance
abuse policy did not violate Section 8(a)(5) and (1) of
the Act.
Contrary to our dissenting colleague, we believe that
our result is wholly consistent with legal principles
governing zipper clauses. In general, a zipper clause is
an agreement by the parties to preclude further bar-
gaining during the term of the contract. If the zipper
clause contains clear and unmistakable language to that
effect, the result will be that neither party can force the
other party to bargain, during the term of the contract,
about matters encompassed by the clause. That is, the
zipper clause will ‘‘shield,’’ from a refusal to bargain
charge, the party to whom such a bargaining demand
is made.9 Similarly, under such a clause, neither party
can unilaterally institute, during the term of the con-
tract, a proposal concerning a matter encompassed by
the clause. That is, the zipper clause cannot be used
as a ‘‘sword’’ to accomplish a change from the status
quo.10
However, where, as here, the purported zipper
clause does not contain clear and unmistakable lan-
guage, there is no waiver of the right to bargain. Thus,
each party has the right, and the opposing party has
the duty, to bargain about subjects not covered by the
contract and not discussed in contract negotiations.
Similarly, because these subjects are ‘‘open’’ for nego-
tiations, a party can implement its proposals after bar-
gaining to a good-faith impasse.
Our dissenting colleague fears that, under these prin-
ciples, an employer could refrain from raising a subject
during negotiations for a contract and then raise the
subject during the contract term, i.e., at a time when,
according to the dissent, the union is less likely to
strike.
The simple answer to our colleague is that the evi-
dence in this case does not establish that the Respond-
283MICHIGAN BELL TELEPHONE CO.
1 See Johnson-Bateman Co., 295 NLRB 180 (1989).
2 See GTE Automatic Electric, 261 NLRB 1491 (1982). While
finding that the zipper clause in GTE privileged the employer to re-
ject the union’s midterm bargaining demand, the Board there empha-
sized that it was permitting the employer to invoke the zipper clause
solely as a shield, that the employer sought only to maintain the sta-
tus quo regarding terms and conditions of employment, that the em-
ployer had not made unilateral changes affecting unit employees, and
that finding the employer’s conduct lawful accorded stability to the
parties’ collective-bargaining relationship. None of these rationales
apply in the present case.
3 Murphy Oil USA, 286 NLRB 1039 (1987).
4 There is no evidence concerning whether the Respondent had
made plans to implement a substance control policy at the time the
contract at issue here was being negotiated. It is noteworthy, how-
ever, that the Respondent unilaterally implemented this policy just
3 months short of contract expiration, rather than deferring this mat-
ter until negotiations over a new contract.
5 Sec. 1 of the Act.
ent resorted to such a stratagem. Moreover, even if an
employer did so, a zipper clause containing clear and
unmistakable language would preclude the employer
from raising or implementing the new subject during
the term of the contract.
Finally, our colleague’s approach would permit a
party to refuse to bargain about unforeseen problems
that arise during the term of the contract. Absent clear
and unmistakable waiver language in the contract, we
believe that the Act should encourage the parties to
bargain in good faith concerning such matters. Further,
it is only after good-faith bargaining to impasse or to
an agreement that a party can institute the desired
change.
ORDER
The complaint is dismissed.
MEMBER DEVANEY, dissenting.
By permitting the Respondent to implement its sub-
stance abuse policy during the term of the contract
without the Union’s consent, my colleagues encourage
the use of the contractual zipper clause as a ‘‘sword’’
rather than a ‘‘shield,’’ providing employers an incen-
tive to withhold from contract negotiations their
planned changes in terms or conditions of employment.
During the term of the parties’ contract, the Re-
spondent unilaterally implemented a substance abuse
policy that required discipline of employees who re-
fused to submit to drug tests or whose drug test results
were positive. Although my colleagues admit, as they
must, that the Respondent’s substance abuse policy is
a mandatory subject of bargaining,1 they nevertheless
find that the Respondent’s unilateral implementation of
this policy was permissible under the contract’s zipper
clause. It is well settled that a zipper clause being
wielded as a ‘‘sword’’ which would allow unilateral
changes stands on different footing than a clause which
is a ‘‘shield’’ to preserve current employment terms.2
Indeed, as the Board has stated, ‘‘the normal function
of such [zipper] clauses is to maintain the status quo,
not to facilitate unilateral changes.’’3 In allowing
themselves to be sidetracked by the Respondent’s
‘‘clear and unmistakable waiver’’ argument, a red her-
ring in this case, my colleagues overlook this para-
mount principle.
Under my colleagues’ interpretation of the zipper
clause, by failing to raise the substance abuse policy
during contract negotiations, the Respondent was privi-
leged to raise and unilaterally implement it during the
contract term; however, if the Respondent had raised
the substance abuse policy in contract negotiations, it
would have been precluded from implementing it uni-
laterally during the contract term.4 Thus, my col-
leagues’ finding that the Respondent’s actions here
were lawful has the effect of encouraging employers
not to raise in contract negotiations any changes in em-
ployment terms they intend to make in the future that
do not modify the contract. By waiting instead to raise
a noneconomic matter, such as a substance abuse pol-
icy, until the contract term has commenced, an em-
ployer secures a significant tactical advantage, as a
union is unlikely to strike solely over a matter that
does not change wages or benefits. Thus, during the
contract term, an employer may unilaterally implement
such an employment condition with impunity, free
from fear that a strike may result. My colleagues’ dis-
missal of the complaint here encourages employers to
refrain from raising intended changes during contract
bargaining, a result that flies in the face of the Act’s
purpose of ‘‘encouraging the practice and procedure of
collective bargaining.’’5 Accordingly, I dissent.
Ellen B. Rosenthal, Esq., for the General Counsel.
Albert Calille, Esq., of Detroit, Michigan, for the Respond-
ent.
Kevin Conlon, District Counsel, of Itasca, Illinois, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. Upon a
charge of unfair labor practice conduct filed on May 9, 1989,
by Communications Workers of America, AFL–CIO (the
Union or Charging Party) against Michigan Bell Telephone
Company (the Respondent), the Regional Director for Region
7, on behalf of the General Counsel, issued a complaint
against the Respondent on November 20, 1989.
In substance, the complaint alleges that on or about May
15, 1989, the Respondent implemented and since that date
has enforced a substance abuse policy without the consent of
the Union; and that by doing so, Respondent has failed and
refused to bargain with the Union in good faith, in violation
of Section 8(a)(1) and (5) and (d) of the Act.
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On December 15, 1989, the Respondent filed an answer
denying that it has engaged in unfair labor practice conduct
as set forth in the complaint.
The hearing in the above matter was held before me in
Detroit, Michigan, on July 12, 1990. Briefs have been re-
ceived from counsel for the General Counsel and counsel for
the Respondent, respectively, which have been carefully con-
sidered.
On the entire record in this case, including my observation
of the demeanor of the witnesses, and my consideration of
the briefs filed by respective counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation organized under, and existing
by virtue of, the laws of the State of Michigan.
At all times material, Respondent has maintained its prin-
cipal office and place of business at 444 Michigan Avenue,
Detroit, Michigan, the only facility involved, where it is en-
gaged in furnishing telephone communications service.
During the year ending December 31, 1988, a representa-
tive period, Respondent in the course and conduct of its busi-
ness operations derived gross revenues in excess of
$500,000, and purchased and caused to be transported and
delivered at its several Michigan facilities, wires, telephones
and other goods and materials valued in excess of $100,000,
of which goods and materials valued in excess of $50,000
were transported and delivered to its several Detroit facilities
directly from locations outside the State of Michigan.
The complaint alleges, the answer admits, and I find that
at all times material, Respondent was an Employer engaged
in commerce, within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the parties stipulated, and I find
that the Union, Communications Workers of America, AFL–
CIO is, and has been at all times material, a labor organiza-
tion within of the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE CONDUCT INVOLVED
At all times material, the Union, by virtue of Section 9(a)
of the Act, has been the exclusive representative of the Re-
spondent’s employees for purposes of collective-bargaining.
A. Background Facts
Respondent operates its Detroit, Michigan business of pro-
viding telephone communications service with its unionized
servicing employees pursuant to an effective collective-bar-
gaining agreement. The agreement (contract) contains a pro-
vision which essentially states that the agreement was a set-
tlement of all demands and proposals made during negotia-
tions; and that negotiations were concluded for the duration
of the agreement, although the agreement could be amended
by mutual consent of the parties.
Before expiration of the contract, the Respondent desired
to implement a policy which it concedes is a mandatory sub-
ject of bargaining. On or about May 15, 1989, the Respond-
ent implemented and enforced the policy on the premise that
the aforedescribed provision in the contract did not preclude
it from implementing the policy, and if in fact it did, it was
no longer binding on Respondent because Respondent and
the Union had bargained to impasse on the policy; and that
by bargaining to impasse on the subject policy, the Union
waived any right it might have had not to bargain during the
term of the contract.
B. The Contract Provision in Dispute
The Respondent and the Union were parties to a collec-
tive-bargaining (Contract) which by its terms was effective
from August 10, 1986, until August 12, 1989. Article 55.3,
page 126 of the contract provided:
This agreement is agreed upon in final settlement of all
demands and proposals made by either party during re-
cent negotiations, and the parties intend thereby to fi-
nally conclude contract bargaining throughout its dura-
tion. However, this agreement may be amended at any
time by mutual consent of the company and the union.
At the hearing the parties stipulated that in May 1989, the
Respondent implemented and has since enforced a substance
abuse policy without the consent of the Union, which policy
includes testing as well as disciplinary penalty for refusal to
submit to drug testing on request, and also for positive test
results.
The parties also stipulated that the Respondent and the
Union bargained to impasse on the implementation of the
above substance abuse policy; and that the subject policy had
not been raised or discussed during the negotiations for the
current (1986) contract (Jt. Exh. 1).
The uncontroverted evidence of record shows that after the
Respondent and the Union bargained to impasse, the Re-
spondent implemented and has since enforced the above de-
scribed substance abuse policy effective May 1, 1989, with-
out even obtaining the consent of the Union. Neither party
presented any witnesses but relied solely on the above stipu-
lations and documentary evidence of record.
Arguments
Counsel for the General Counsel contends that in accord-
ance with article 55.3 of the contract, the Union did not con-
sent to implementation of the substance abuse policy; and
that although the Union bargained to impasse with Respond-
ent about the implementation of the subject policy, the Union
was not required to bargain with Respondent and it has not
consented to, or agreed with implementation of the policy by
the Respondent.
Respondent admits in its answer to paragraph 13 of the
complaint that the subject substance abuse policy relates to
wages, hours, and other terms and conditions of employees
in the unit, and that it is a mandatory subject of bargaining
for purposes of collective bargaining. However, Respondent
argues that the contract does not provide a zipper clause; that
article 55.3 of the contract does not constitute a zipper clause
against midterm bargaining on matters not discussed during
negotiations; and that if article 55.3 does constitute such a
zipper clause, the Union has waived any contractually re-
served right not to bargain during the term of the contract
by bargaining to impasse on the substance abuse policy.
Both parties here agree that the subject substances abuse
policy was not a term or condition of employment in the cur-
285MICHIGAN BELL TELEPHONE CO.
rent contract (G.C. Exh. 1), or that any reference is made to
such policy in the current agreement.
With respect to a provision against midterm bargaining in
an effective collective-bargaining contract, the General Coun-
sel properly argues that Section 8(d) of the Act, preserves the
status quo as to mandatory subjects of bargaining during the
term of an agreement. Under this Section of the Act (8(d))
neither party under such circumstances may compel the other
party to bargain during the term of the contract over any
change in a term or condition of employment established by
the contract, except by mutual consent of the parties. Jones
Dairy Farm, 295 NLRB 113 (1989).
Analysis and Conclusions
It is particularly noted that the language of article 55.3
does not expressly refer to ‘‘demands and proposals’’ which
were not made or referred to during the negotiations between
the parties. However, the additional language of 55.3: ‘‘and
the parties intend thereby to finally conclude contract bar-
gaining throughout its duration,’’ literally and logically im-
plies that the parties intended that bargaining on any subject
during the term of the contract would be precluded. If this
interpretation is correct, or reasonable, counsel for the Gen-
eral Counsel appears to be supported in her position that if
the parties bargain on demands and proposals made during
the term of the contract, no changes may be made in any
terms or conditions of employment as established by the con-
tract. The one exception is that such changes may be made
by mutual consent or agreement of the parties. This is so be-
cause the zipper clause language of 55.3 was apparently in-
tended to preserve the status quo of the contract with respect
to any demands or proposals made during the term of the
contract. Suffolk Child Development Center, 277 NLRB
1345, 1350 (1985).
The General Counsel further argues that the Board has
upheld a zipper clause which prevents changes in a collec-
tive-bargaining agreement on subjects which are not covered
by the agreement. This includes changes not within the
knowledge or contemplation of the parties, GTE Automatic
Electric, 261 NLRB 1491 (1982). Correspondingly, terms
and conditions of employment which are not covered by a
collective-bargaining agreement are placed on the same foot-
ing as such terms and conditions in a contract under Section
8(d) of the Act. Jones Dairy Farm, supra.
As the Board stated in GTE Automatic Electric, supra,
1491–1492:
by permitting Respondent to invoke the zipper clause as
a shield against the Unions’ midterm demand for bar-
gaining over a new benefit, and by giving literal effect
to the parties’ waiver of their bargaining rights, indus-
trial peace and collective-bargaining stability will be
promoted.
A distinguishing feature noted in the GTE case is that the
Respondent there, relying on a clear and unmistakable waiver
of midterm bargaining in the zipper clause, refused the
Unions’ request to bargain midterm on a matter not covered
in the contract (pension plan). In construing the zipper clause
of the contract, the Board held that by allowing the Respond-
ent to defensively invoke the zipper clause as a shield against
the Unions’ midterm demand for bargaining over a new ben-
efit, it was giving literal effect to the parties waiver of their
bargaining rights, and thereby promoting industrial peace and
collective-bargaining stability. However, since the Respond-
ent’s exercise of his right to refuse to bargain under the zip-
per clause resulted in a discriminatory application of the pen-
sion plan among the represented and unrepresented employ-
ees, the Respondent’s conduct was found to be violative of
Section 8(a)(1) and (5) and (d) of the Act.
In the instant case, not only was there not a clear and un-
mistakable waiver of bargaining rights by the parties on mat-
ters not included in the contract, or demands and proposals
mentioned during negotiations, but the Respondent and the
Union voluntarily bargained on the substance abuse policy to
impasse. So it is clear that the GTE case is distinguishable
from the facts in the instant case.
Additionally, although the Union here is invoking the zip-
per clause as a defense to the Respondent’s demand for mid-
term bargaining and its unilateral implementation of the sub-
stance abuse policy, it is again noted that the zipper clause
(55.3) does not constitute a clear and unmistakable waiver by
the parties not to engage in midterm bargaining on manda-
tory subjects of bargaining, not included or referred to in the
contract or mentioned in negotiations for the contract.
Counsel for the General Counsel further argues that zipper
clause language in the instant case is clear and unambiguous,
that the parties intended there would be no midterm bar-
gaining on any mandatory subject of bargaining, whether or
not the subject was raised in negotiations. However, while I
do not find such specificity and clarity of expression in arti-
cle 55.3 as was set forth in the zipper clause in GTE, supra,
‘‘that there would be no bargaining on any mandatory sub-
ject of bargaining throughout the duration of the contract,’’
it would appear that the language of 55.3 is sufficient to sup-
port the General Counsel’s conclusion.
Perhaps more precisely in point is the case of Martin
Marietta Energy Systems, 283 NLRB 173 (1987), cited by
the General Counsel. There, the contract between the em-
ployer and the Union contained the following provision:
Article XV, Section 1. It is hereby agreed that this con-
tract contains the complete agreement between the par-
ties or their successors, and no additions, waivers, dele-
tions, changes or amendments, shall be made during the
life of this contract except by mutual consent, in writ-
ing of the parties.
It is obvious that the language in the Martin Marietta case
is specific and explicit that no changes or additions in the
terms or working conditions can be made in any manner, ex-
cept by mutual consent of the parties in writing.
While the language in the instant case (55.3) is not as ex-
plicit as the language in the zipper clause in Martin Marietta,
the parties nevertheless specifically agreed that their agree-
ment was ‘‘a final settlement of all demands and proposals
made by either party during negotiations,’’ and by which
agreement, they intended that contract bargaining would end
bargaining during the term of the agreement. The latter lan-
guage may be reasonably construed that the parties intended
that all bargaining, whether or not the subject was previously
demanded or proposed, would nonetheless conclude bar-
gaining during the term of the contract. The language of 55.3
goes further, by adding, the agreement ‘‘may be amended at
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
any time by mutual consent’’ of the company and the Union.
The latter sentence, beginning with ‘‘However,’’ conveys the
understanding that the agreement may be amended midterm
only by the mutual consent of the parties.
In view of the foregoing language analysis, interpretation,
and cited legal authority, I give reasonable and literal effect
to the language of the zipper clause (55.3) that ‘‘the parties
intended to finally conclude all contract bargaining through-
out its duration,’’ and that no bargaining should take place
during the term of the contract. This is especially true since
the contract’s zipper clause provides that the contract can be
amended only on the consent of both parties. Martin Mari-
etta Energy Systems, supra.
Since the language of article 55.3 of the contract described
above makes it clear that the agreement was the finality of
all demands and proposals made by either party during recent
negotiations, unless amended by mutual consent of the par-
ties, it is clearly a zipper clause. As such, either party may
clearly refuse to bargain about any demands and proposals
made during the term of the contract. Although the parties
may voluntary choose to bargain, they are not required to do
so. However, if the parties do bargain during the term, no
changes may be made in the contract terms without the mu-
tual consent of the parties because mutual consent is required
by the last sentence in article 55.3. Suffolk Child Develop-
ment Center, supra.
In the instant case, the Respondent and the Union bar-
gained to impasse over the substance abuse policy but there
was no mutual consent by the parties to implement the pol-
icy. Under such circumstances, Respondent could not legally
add to or change the terms of the contract (G.C. Exh. 1) by
unilaterally implementing and enforcing the substance abuse
policy (which was neither demanded nor proposed during ne-
gotiation). Jones Dairy Farm, supra; Suffolk Child Develop-
ment Center, supra.
Midterm Contract Modification
Even Section 8(d) of the Act does not impose a midterm
bargaining obligation on parties if either party makes or re-
ceives a proposal or demand, in the absence of a contract re-
opener provision. Speedrack, Inc., 293 NLRB 1054 (1989).
The contract in the instant case does not provide for a re-
opener during the term of the agreement. In fact, it (55.3)
precludes bargaining on any subject during the term of the
contract, although the contract may be amended by mutual
consent of Respondent and the Union, Hydrologics, Inc., 293
NLRB 1060 (1989).
Speedrack, Inc., supra, cited by counsel for the General
Counsel, is distinguishable from the facts before me because
the subject of the unilateral change there, was wage rates ‘‘in
an existing collective-bargaining agreement,’’ made without
the consent of the union. However, there, unlike in the in-
stant case, the change was made pursuant to the contract’s
wage reopener after the parties had bargained to impasse.
Here, the change or addition (a substance abuse policy) was
not a subject in the existing collective-bargaining agreement,
and the agreement does not contain a reopener provision.
Consequently, Section 8(d) of the Act as applied in
Speedrack, Inc., supra, addresses unilateral changes of provi-
sions or subjects contained within an existing contract or zip-
per clause thereof.
The last sentence of Section 8(d) of the Act provides:
That where there is in effect a collective-bargaining
contract covering employees in an industry affecting
commerce, the duty to bargain collective shall also
mean that no party to such contract shall terminate or
modify such contract, unless the party desiring such ter-
mination or modification complies with subsections (1),
(2), (3) and (4).
Under this section the terms ‘‘termination’’ or ‘‘modifica-
tion’’ appear to refer to the language or terms and conditions
of employment in an existing contract, and not to subjects
not mentioned within the contract, such as ‘‘the substance
abuse policy’’ in the instant case.
Respondent’s argument that by bargaining to impasse on
Respondent’s implementation of the policy, the Union
waived its right in the zipper clause against midterm bar-
gaining, is unfounded, and certainly not supported by any ap-
propriately cited legal authority. American Telephone & Tele-
graph Co., 250 NLRB 47 (1980), cited by Respondent, is
distinguishable from the instant case, as the General Counsel
argues, because unlike here, the contract there, was silent on
the matter of midterm bargaining.
Consequently, even though the parties bargained gratu-
itously to impasse on the substance abuse policy, they were
not required to do so. In fact, they did so in spite of the ex-
press language of the zipper clause that ‘‘there would be no
midterm bargaining.’’ However, as previously construed, the
language of the zipper clause (55.3) does not end there. It
further provides that the contract may be amended by mutual
consent of the parties. In the face of such language, it can
not be reasonably found that the Union waived its right not
to bargain by gratuitously bargaining to impasse with Re-
spondent. At no time did the Union give its consent to the
substance abuse policy and the Respondent was without au-
thority to implement the policy without the consent of the
Union to do so.
Respondent appears to be equating the parties’ zipper
clause language, ‘‘finally conclude contract bargaining
throughout the duration of the contract,’’ with the relinquish-
ment of a collective-bargaining right under the provisions of
a collective-bargaining agreement. I do not read Respond-
ent’s ‘‘waiver interpretation’’ of the zipper clause into the
parties 55.3 zipper clause. It is clear by the zipper clause lan-
guage of 55.3 that neither party was waiving any right to
bargain on mandatory subjects of bargaining. Instead, both
parties were agreeing not to bargain on any bargainable sub-
jects during the term of the contract. They were not relin-
quishing the right to bargain on any mandatory subject of
bargaining. Such a waiver, of course must be made in clear
and unmistakable language. The language of the zipper
clause here does not address the subject of waiver, not to
mention clear and unmistakable language.
Although the Union bargained to impasse with Respondent
about the substance abuse policy, its bargaining conduct, in
the face of the language of article 55.3, is insufficient to con-
stitute a clear and unmistakable waiver of its right not to bar-
gain midterm under 55.3.
Respondent further argues that the zipper clause (55.3) by
its language is limited to only ‘‘demands and proposals’’
made by either party during contract negotiations. Respond-
ent might be correct if the zipper clause ended at that junc-
ture, but it does not. It continues by stating ‘‘the parties in-
287MICHIGAN BELL TELEPHONE CO.
tend to finally conclude contract bargaining throughout’’ du-
ration of the contract. It is obvious that the parties were try-
ing to avoid any bargaining whatsoever during the term of
the contract and preserve the status quo of each party until
expiration of the contract. Again, to assure preserving the
status quo, the parties added the last sentence of the zipper
clause, that the ‘‘agreement may be amended at anytime by
mutual consent of the parties.’’ It is therefore clear that any
amendment of the contract during its term had to have the
consent of both parties. Since the Union never consented to
the drug abuse policy, Respondent could not amend the con-
tract by implementing the substance abuse policy, which it
concedes is a mandatory subject of bargaining.
I find that other arguments and cases cited by Respondent
do not support its position and are not applicable to the facts
in the instant case.
Based on the foregoing uncontroverted evidence, cited
legal authority, and reasons, I find that Respondent imple-
mented and enforced the substance abuse policy in spite of
the language of article 55.3 precluding any bargaining
change in the collective-bargaining agreement with the
Union; and that Respondent’s unilateral implementation of
the substance abuse policy constitutes a failure and refusal to
bargain with the Union as the exclusive collective-bargaining
representative of the employees, in violation of Section
8(a)(1) and (5) and (d) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practice conduct, I shall recommended that it
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent implemented and enforced
a substance abuse policy without the consent of the Union,
Respondent has violated the zipper clause of the collective-
bargaining agreement and thereby, has failed and refused to
bargain in good faith with the duly authorized collective-bar-
gaining representative (the Union) of its employees, in viola-
tion of Section 8(a)(1) and (5) and (d) of the Act.
CONCLUSION OF LAW
By unilaterally implementing and enforcing the substance
abuse policy without the consent of the Union, the Respond-
ent has failed and refused to bargain in good faith with the
Union, and has restrained and coerced employees in the exer-
cise of their rights guaranteed by Section 7, in violation of
Section 8(a)(1) and (5) and (d) of the Act.
[Recommended Order omitted from publication.]