The opinion
BAILEY BROWN, Circuit Judge,
dissenting.
I respectfully dissent.
The precise issue before the Board was whether Pepsi-Cola, as a successor employer that adopted the existing collective bargaining contract effective November 1976-No-vember 1977, committed an unfair labor practice under Section 8(a)(5) by its failure to bargain with respect to the payment of the 1977 Christmas bonus. I recognize that the Union’s statutory right to bargain cannot be held to have been waived unless such result is required by the provisions of the collective bargaining contract and the surrounding circumstances. The ALJ determined that the right to bargain was waived by the clear terms of the contract and that the surrounding circumstances did not support a different result. The Board determined that the contract was not clear as to waiver of the right to bargain, and that, moreover, the surrounding circumstances did not support a waiver by the Union. In my view, under the collective bargaining contract the parties waived the right to bargain by language that could not have been clearer had it been written by Abraham Lincoln and etched in stone. Moreover, there was nothing in the surrounding circumstances that supported a different result.
*1177 I would agree, as the ALJ determined, that this bonus, though not mentioned in the contract, was not a gratuity and had become part of Hartman’s (the predecessor employer’s) wage structure. It might well be that, if the Union had taken this bonus issue to arbitration, it should have prevailed. It could have possibly prevailed either on the theory that the bonus claim had not been waived by the contract or on the theory that, even if so waived, Pepsi-Cola in effect “waived the waiver” when it obtained some information from Hartman about the bonus in May of 1977 and did not then take the matter up with the Union. (In May, Pepsi-Cola did receive information from Hartman about the bonus, but it was incorrect; the information was that the route salesmen were paid one cent per case less than the contract rate and that this amount was accumulated and paid as a “bonus” at the end of the year.) But, as I have indicated, the question before the Board was not whether the Union had effectively waived the right to the bonus but rather whether the Union had waived the right to bargain with respect to the bonus. It was not for the Board to determine whether Pepsi-Cola was bound to pay the bonus where, as here, there was an arbitration provision in the contract to resolve such disputes. See N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421 , 87 S.Ct. 559 , 17 L.Ed.2d 486 (1967), at 426-428, 87 S.Ct. at 562-564 .
First, I will deal with the terms of the collective bargaining contract and then with the surrounding circumstances.
The operative provision of this contract provided as follows:
Section 2. The Employer and the Union agree that all matters desired by either party have been presented, discussed and incorporated herein or rejected. Accordingly, it is agreed that for the life of this Agreement each party voluntarily and unqualifiedly waives the right and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter, whether or not referred to in this Agreement. (Emphasis supplied.)
In N.L.R.B. v. Southern Materials Co., 447 F.2d 15 (4th Cir. 1971), the Fourth
Circuit found the following clause to be a “clear and unmistakable” waiver of the union’s right to negotiate about Christmas bonuses. The clause in Southern Materials stated (at 17):
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 subject matter referred to or covered in this Agreement, or with respect to any subject matter not specifically referred to or covered in this Agreement. 447 F.2d at 17 .
There is no difference of consequence between the waiver clause presented here and the waiver clause before the court in Southern Materials.
As stated, there is nothing in the surrounding circumstances that could be interpreted as a waiver of this waiver provision. It is without dispute that Pepsi-Cola had no knowledge of this practice of Hartman of paying a Christmas bonus when Pepsi-Cola bought this business and adopted this collective bargaining contract which did not mention bonus, in February of 1977. Pepsi-Cola did, in adopting this contract, verbally assure that compensation of employees would continue as under Hartman, but it obviously meant the compensation set out in the contract would be paid. Pepsi-Cola did receive some incorrect information about the bonus from Hartman, as before stated, in May of 1977 and did not consult with the Union about it. But the only effect this could have possibly had on the rights of these parties would be to create a waiver of its contract right not to pay the bonus. It could not effect a waiver of Pepsi-Cola’s contract right not to bargain with respect to the bonus.
Even if the Board were correct in determining that Pepsi-Cola was guilty of an unfair labor practice in failing to bargain with respect to the bonus, it is doubtful that it had the authority to, in effect, adjudicate *1178 the obligation of Pepsi-Cola to pay the bonus (see C & C Plywood Corp., supra, 385 U.S. at 428 , 87 S.Ct. at 564 ) rather than to order Pepsi-Cola to bargain. In any case, the Board exercised some overkill when, in spite of Pepsi-Cola’s strong position, it ordered Pepsi-Cola to pay the 1977 bonus rather than to bargain with respect to it and when, in spite of the fact that the parties had settled the bonus issue as to future years, it ordered Pepsi-Cola to bargain as to future years.
For these reasons, I respectfully dissent and would deny enforcement.