granting enforcement of an NLRB order holding that the employer violated Section 8(a)(1) and (a)(5) of the National Labor Relations Act, finding that the zipper clause did not amount to a relinquishment of the right to bargain over effects of the employer’s unilateral shift of production from one bargaining unit to another
How later courts described this case
- granting enforcement of an NLRB order holding that the employer violated Section 8(a)(1) and (a)(5) of the National Labor Relations Act, finding that the zipper clause did not amount to a relinquishment of the right to bargain over effects of the employer’s unilateral shift of production from one bargaining unit to another
- granting enforcement of NLRB order holding the employer violated sections 8(a)(1) and (a)(5) of the LMRA, finding zipper clause did not amount to a relinquishment of the right to bargain over effects of the employer’s unilateral shift of production from one bargaining unit to another
- zipper clause did not constitute waiver by union of right to bargain over effects of employer’s unilateral changes during term of contract
Written by the judges who cited it.
The opinion
BOGGS, Circuit Judge,
dissenting.
Because in my view the union waived its right to require Challenge-Cook Brothers to bargain over the effects of the relocation of cement mixer operations from the Bryan, Ohio plant to the Calhoun, Georgia plant, pursuant to the zipper clause in the collective bargaining agreement, I dissent.
In its previous decisions, the Labor Board has not consistently delineated what is needed to establish a “clear and unmistakable” waiver of rights, as our decision in Tocco Division of Park-Ohio Industries, Inc. v. NLRB, 702 F.2d 624 (6th Cir.1983), illustrates. I fully agree with the court’s opinion that a “clear and unmistakable” waiver is required. NLRB v. Pepsi-Cola Distributing Co., 646 F.2d 1173 (6th Cir.1981), cert. denied, 456 U.S. 936 , 102 S.Ct. 1993 , 72 L.Ed.2d 456 (1982). However, the Labor Board in this case has not been faithful to the standard we approved in Tocco, even though the Board’s brief in this case confirmed that the standard applied in this case. This standard recognizes a waiver can exist in the clear language of the contract alone, without resort to extrinsic evidence. Tocco, 702 F.2d at 627 (relying on International Union of Operating Engineers, Local Union 18, 238 NLRB 652 (1978)). As we said in Tocco, “evidence of bargaining history and of the parties’ practice under a collective bargaining agreement is only admissible if the contractual language is ambiguous.” Ibid.
I do not agree that the Board is essentially entitled to ignore the plain language of a broadly worded zipper clause, which evidences the parties’ intention to have their agreement contained in the four corners of the collective bargaining agreement. In my view, the zipper clause in this case is broad and comprehensive and effectuates a waiver of “effects” bargaining.
It is important to focus on the precise language of the zipper clause, which says quite clearly that the collective bargaining agreement precludes negotiation on subjects not specifically mentioned therein. The operative language of section 36.02 says that the agreement covers “all matters affecting wages, hours, and other terms, and all conditions of employment and similar or related subjects.... ” In equally plain language, it states that neither the employer nor the union is required to “negotiate on any further matters affecting these or any of the subjects not specifically set forth in the Agreement.” In my view, this broad and comprehensive language shows a “clear and unmistakable” waiver of all subjects not specifically mentioned in the agreement.
Under the Labor Board’s approach, an employer that wants the collective bargaining agreement to contain the entire agreement of the parties must specify with exacting detail those issues that have been the subject of bargaining and those that have not been considered. This diminishes the importance of using general language to convey the parties’ intent, can lengthen needlessly the bargaining process, and perhaps will lessen the ability of the parties to come to agreement. It seems curious to me that the Board’s approach would imply that the broader the language in a zipper clause, the less likely the Board will read it as a waiver of all subjects. A broadly worded zipper clause should be read to allow the employer “to rid itself of all obligations outside of the contract, including obligations it could not identify or had not thought about.” International Brotherhood of Electrical Workers Local 1466, AFD-CIO v. NLRB, 795 F.2d 150, 156 (D.C. Cir.1986).
This case is similar in many respects to Electrical Workers. There, the District of Columbia Circuit affirmed the Labor Board’s decision that a zipper clause constituted an effective waiver of the union’s right to bargain about the termination of a *235 Christmas bonus. The zipper clause in that case stated in pertinent part:
It is the intent of the parties that the provisions of this Agreement will supersede all prior agreements and understandings, oral or written, expressed or implied, between such parties and shall govern their entire relationship and shall be the sole source of all rights or claims which may be asserted in arbitration hereunder or otherwise.
The court found support for its decision in the “strong and sweeping” language of the zipper clause, which “limit[ed] the union’s rights to compensation to those provisions found within the agreement.” Id. at 153 . The court said “[t]he union explicitly and unmistakably agreed to eliminate the Christmas bonus as a term or condition of employment when it accepted the integration sentence of the zipper clause and, therefore, lost any bargaining rights regarding its elimination.” Id. at 156 . See also id. at 154 (the zipper clause “serves to set aside all prior elements of compensation and replace them with the explicit compensation provisions contained in the contract.”).
The court of appeals also relied on the parties’ history of bargaining, which did not specifically show that the Christmas bonus or any other issues were to be excluded by the zipper clause. Id. at 154 . Indeed, the employer refused to discuss any specifics. According to the court, the company viewed its proposal as “comprehensive” and “wip[ing] the slate clean” and “unambiguously expressed that view to the union prior to any agreement on the proposal.” Ibid.
In our case, of course, we do not have any bargaining history. Unlike the Board in this case, I do not find that to be a fatal flaw. If a zipper clause is worded as broadly as it is in this case, the Board should recognize a waiver without examining bargaining history. This is consistent with the standard approved in Tocco. Even if resort is had to bargaining history, I would not find it dispositive unless it provides evidence that the parties intended an issue to be excluded from the zipper clause. Here, there is no such evidence.
The Electrical Workers case provides an instance of both the Labor Board and the court of appeals approving a waiver, even though the bargaining history does not indicate the specific subjects to be excluded from the zipper clause. Comparing our case with Electrical Workers, it seems clear that the Board is not applying the “clear and unmistakable” waiver rule consistently.
Because the language of section 36.02 of the collective bargaining agreement “could not have been clearer had it been written by Abraham Lincoln and etched in stone,” NLRB v. Pepsi-Cola Distributing Co., 646 F.2d 1173, 1176 (6th Cir.1981) (Brown, J., dissenting), cert. denied, 456 U.S. 936 , 102 S.Ct. 1993 , 72 L.Ed.2d 456 (1982), I conclude that the union clearly and unmistakably waived its right to “effects” bargaining.