Budd Co.

National Labor Relations Board - Board Decisions

Dec 6, 2006

348 N.L.R.B. 1223 (N.L.R.B. 2006)

BUDD CO.
348 NLRB No. 85
1223
The Budd Company and International Union, United
Automobile, Aerospace and Agricultural Im-
plement Workers of America, Local 2383, UAW.
Case 9–CA–38113
December 6, 2006
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On December 20, 2001, Administrative Law Judge
Earl E. Shamwell Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the Charging Party filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs, and has decided to af-
firm the judge’s rulings, findings,1 and conclusions only to
the extent consistent with this Decision and Order.
The judge found that the Respondent violated Section
8(a)(5) and (1) by unilaterally implementing a rule ban-
ning radios from the plant. Contrary to the judge, we
find that the Respondent was privileged by the collec-
tive-bargaining agreement to unilaterally make and en-
force the radio ban. We find that the contract provided
the Union with specific grounds and clear procedures to
challenge the proposed rule, and by agreeing to the pro-
vision, the Union clearly and unmistakably waived its
right to request bargaining over the Respondent’s action.
Thus, for the reasons more fully explained below, we
reverse the judge and dismiss the complaint.
Background
The Budd Company has manufactured auto parts at its
Shelbyville, Kentucky plant since 1988. On May 13,
1998, the Union was certified as the exclusive bargaining
representative of a unit of technical and production asso-
ciates. On November 16, 1998, the parties entered into a
collective-bargaining agreement, effective November 16,
1998, to November 9, 2001. The parties appended a list
of “Company Rules and Policies” to the agreement, but
the list was not incorporated into the agreement. There
was no written rule in the contract or the appended list
addressing the use of radios in the plant.
The ban on radio use was implemented in November
2000.2 The Respondent claims that prior to that time, it

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 All further dates are 2000, unless otherwise indicated.
had maintained an unwritten rule prohibiting radios.
However, the Respondent admits that the rule was not
consistently enforced. The Union claims, and the judge
found, that as of November there was an existing past
practice of allowing radios.
In November 2000, the Respondent received safety-
related complaints from two employees about radio use
in the plant. On November 17, Human Resources Man-
ager Amy Bouque met with Union President Bob Loud-
ermilk and other union officials and announced that, ef-
fective November 22, radios, CD players, and similar
equipment were banned from the plant because such de-
vices raised safety concerns.
Loudermilk testified that when the Respondent an-
nounced the rule, the Union “asked the Company to—to
bargain on this so we could set up some kind of, you
know, rules governing the use of [radios].” According to
Loudermilk, Bouque stated that it was “not negotiable.”
The Union also sent two e-mails to the Respondent re-
questing bargaining and contending that the Respondent
could not unilaterally modify its past practice. Louder-
milk testified that the Respondent did not reply to those
requests.
On November 22, the Union filed a grievance over the
radio ban. The grievance was denied on November 29,
and the Union filed an unfair labor practice charge on
December 4 alleging that the Respondent had violated
Section 8(a)(5) and (1) by unilaterally banning radios
from the plant.
Relevant Contract Provisions
Article IX of the contract, discipline and discharge,
states in pertinent part:
Section (2) The Company shall continue to have
and exercise the right to make and enforce rules and
regulations to ensure orderly and efficient opera-
tions, to maintain discipline, and to provide for the
safety of associates and equipment. Existing rules
and regulations, which are to be in effect at the in-
ception of this Agreement, will be printed and dis-
tributed by the Company.
Section (3) Should the Union wish to contest a
rule as being arbitrary, unreasonable or in conflict
with the Agreement, the Union must, within a ten
calendar day period after being notified in writing of
the new or modified rule, protest the specific rule,
indicate why it believes the rule is arbitrary, unrea-
sonable or the specific provision of the agreement
the proposed rule is allegedly in conflict with, and
request an immediate conference and discussion
with the Company. If the parties are unable to agree
on the rule, and the Union wishes to arbitrate the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1224
disagreement it must within ten calendar days of the
meeting submit its protest to expedited arbitration.
The agreement also contains a broad management-
rights clause and a zipper clause.
Discussion
The judge found that article IX of the collective-
bargaining agreement granted the Respondent the right to
make and enforce new rules regarding safety. But the
judge found that it was unclear whether article IX applied
to the radio ban because it did not directly address modi-
fications to existing policies or past practices. The judge
also noted Union President Loudermilk’s testimony that
the Union did not dispute the Respondent’s right to make
the rule, but sought to bargain over the implementation of
the rule, a subject not covered by article IX.3 The judge
found, on balance, that the applicability of article IX to
the radio ban was not “a foregone conclusion or legal
certainty.”
The judge then found that even if article IX applied in
this case, it did not express a clear and unmistakable
waiver of the Union’s right to bargain over the “long-
held privilege” of radio use in the plant. Finally, the
judge found that the management-rights clause and the
zipper clause were generally worded and thus did not
manifest a clear and unmistakable waiver of the Union’s
right to bargain over radio use. In light of these findings,
the judge ruled that the Respondent had a duty to bargain
over the proposed rule, and that its refusal to do so vio-
lated Section 8(a)(5) and (1). We disagree.
Article IX (2) of the collective-bargaining agreement
gives the Respondent “the right to make and enforce
rules and regulations . . . to provide for the safety of as-
sociates and equipment.” The Union conceded that the
use of radios posed a potential safety hazard in the plant
and that the Respondent retained the right to promulgate
the rule. In addition, article IX (3) states that the article
applies to “new or modified rule[s].” Thus, we find that
article IX applies to the Respondent’s proposed radio

3 The judge found that the Respondent’s failure to bargain over the
rule itself violated Sec. 8(a)(5). Neither the General Counsel nor the
Charging Party Union submitted exceptions in this case, so the conten-
tion that the Union sought to bargain over the implementation of the
decision, i.e., the effects, rather than the decision itself, is not before the
Board on review of the judge’s finding. In any event, the evidence as a
whole shows that the Union sought to bargain over the Respondent’s
decision to promulgate the rule. Loudermilk testified that the Union
“asked the Company to—to bargain on this so we could set up some . . .
rules governing the use of [radios],” and the judge observed that Loud-
ermilk requested bargaining “with a view toward establishing some
mutually acceptable rules governing radio use.” As explained below,
the Union clearly and unmistakably waived its right to bargain over the
decision to promulgate the rule.
ban, regardless of whether it is characterized as a new
rule or a modification of an existing practice.
Article IX (3) also sets out specific grounds and clear,
mandatory procedures for the Union to follow in the
event that it wishes to challenge a rule such as the radio
ban. Contrary to the judge, we find that, by agreeing to
the exclusive procedures listed in article IX (3) for chal-
lenging a proposed rule, the Union clearly and unmis-
takably waived its right to request bargaining over the
proposed radio ban.4 See Metropolitan Edison Co. v.
NLRB, 460 U.S. 693, 708 (1983); Ingham Regional
Medical Center, 342 NLRB 1259 fn. 1, 1262 (2004).
The Union failed to challenge the radio ban according to
the agreed-to procedures, and it may not seek additional
recourse from the Board. We therefore reverse the judge
and dismiss the complaint.
ORDER
The complaint is dismissed in its entirety.
Linda B. Finch, Esq., for the General Counsel.
Richard R. Parker, Esq. (Ogletree, Deakins, Nash, Smoak and
Stewart, P.C.), of Nashville, Tennessee, for the Respondent.
Adrienne A. Berry, Esq. (Segal, Stewart, Cutler, Lindsay, Janes
and Berry), of Louisville, Kentucky, for the Charging Party.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This
case was heard before me on May 23, 2001, in Louisville, Ken-
tucky, pursuant to a charge originally filed on December 4,
2000, against The Budd Company (the Respondent) by the
United Automobile, Aerospace and Agricultural Implement
Workers of America, Local No. 2383, UAW (the Union). On
February 27, 2001, the Regional Director for Region 9 of the
National Labor Relations Board (the Board) issued a complaint
based on the aforesaid charge. The complaint alleges that the
Respondent violated Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act) by prohibiting the use of radios
at its Shelbyville, Kentucky plant and not affording the Union
an opportunity to bargain over the implementation of the prohi-
bition.
The Respondent timely filed an answer in which it denied
violating the Act in any way.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and the Respondent, I make
the following

4 In addition to its argument that article IX expresses a clear and un-
mistakable waiver of the Union’s right to bargain in this case, the Re-
spondent argued that it was privileged to implement the rule without
bargaining because the contract “covered” the proposed rule. We do
not pass on the applicability of a contract coverage argument because
the result would be the same under a contract coverage or a waiver
analysis.
BUDD CO. 1225
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation with an
office in Shelbyville, Kentucky, has been engaged in the busi-
ness of manufacturing automobile parts. The Respondent ad-
mits, and I find, that in conducting its business operations dur-
ing the last 12 months, it purchased and received at its facility
goods valued in excess of $50,000 directly from points outside
the Commonwealth of Kentucky. The Respondent further ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all material times,
the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
The Respondent admits, and I find, that the following em-
ployees employed at its Shelbyville facilities constitute a unit
appropriate for the purposes of collective-bargaining within the
meaning of Section 9(b) of the Act.
All full time and regular part-time production and mainte-
nance employees, including all technical and production asso-
ciates and team leaders, employed by the Respondent at its
Shelbyville, Kentucky facility.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
The Respondent manufactures automobile parts such as
fenders, doors, body sides, and hoods for large American and
foreign automobile manufacturers such as Ford Motor Com-
pany and Bavarian Motors Workers (BMW). The manufactur-
ing of automobile parts involves stamping and pressing coils of
steel into various parts and components and then finishing the
products through metallurgical and painting processes. Materi-
als and finished products also are moved about the facility by
various powered vehicles equipped with audible and visible
alarms. The stamping and pressing processes and these vehi-
cles combine to produce a high decibel noise environment at
the plant. Because of the noise level at the facility, workers
wear ear plugs.
The Respondent opened the Shelbyville facility in 1988.
The plant is divided into several departments—the production
department, the materials handling department, and two techni-
cal departments. The production side of the Respondent’s op-
eration is composed of the press shop and assembly, and em-
ploys around 700–800 workers who are called production asso-
ciates. The technical department consists of the tooling and the
jig and fixture divisions, and employs around 200–250 employ-
ees called technical associates.
On May 13, 1998, the Union was certified as the exclusive
collective-bargaining representative of the production and tech-
nical associates at the Shelbyville plant, and since that time has
been the exclusive collective-bargaining representative of these
employees.
Around November 16, 1998, the Respondent and the Union
entered a collective-bargaining agreement effective November
16, 1998, to November 9, 2001.1 Attached to the agreement
was an appended document entitled “Company Rules and Poli-
cies,” which included provisions subtitled “General Conduct
Codes.” These rules and policies were discussed by the parties
in contract negotiations. However, they were not incorporated
in the collective-bargaining agreement.2
Sometime in early November 2000, the Respondent received
complaints from two employees who reported that radios lo-
cated in overhead positions in the press and assembly areas of
the plant had fallen from their perch, nearly missed them,
struck the floor and had broken up. Around this time, the Re-
spondent’s management had also observed what it considered a
substantially increased usage of radios around the plant and
determined that the radio playing had become a potential safety
issue. The Respondent’s investigation disclosed that radio
extension cords were presenting trip hazards on the plant floor;
radios, without authorization, were being plugged in the factory
outlets in a jerry-rigged fashion; and radios had been placed in
unsafe and unsecured overhead positions.3
On November 17, 2000, Amy Bouque, the Respondent’s
human resources manager, requested a meeting with the Union
to discuss several issues at the plant, but primarily the radio
problem.4 At this meeting, Bouque advised the Union’s bar-
gaining committee members, namely Robert Loudermilk
(president), Ken Beaton, Charles Biven, and Dennis Weisel,
that due to the increased use of radios and the safety issues
surrounding their usage, the Respondent was going to invoke a
rule prohibiting radios in the plant. At that time, Bouque noti-
fied the Union that the radio ban would take effect on Novem-
ber 22, 2000.
On November 17, the Respondent announced to the work
force that effective November 22, 2000, radios (and all other
types of music playing devices, such as CD players and port-
able devices, commonly known as Walkman radios) would no
longer be allowed in the plant.5
B. The General Counsel’s Position
The complaint alleges, and the General Counsel contends,

1 See GC Exh. 2, the entire collective-bargaining agreement.
2 The Company rules and policies and the general conduct codes
were in existence prior to the Union’s certification as exclusive collec-
tive-bargaining representative. The parties agreed during negotiations
that the rules and policies would be attached to the agreement but
would not be incorporated in the agreement.
3 The Respondent’s manager of health, safety, and environment, Mi-
chael Welsh, testified at the hearing about the Company’s November
2000 response to and investigation of the use of radios and problems
associated with them. There is no genuine dispute between the parties
that radios, to a greater or lesser degree, had become problematic at the
Shelbyville plant, and their usage posed potential safety risks.
4 Meetings between management bargaining representatives and the
Union’s bargaining committee are described as issues meetings, which
are called to address specific issues that have arisen between the par-
ties. In addition to Bouque, the Company was represented by a group
leader, H. R. Brent, and human resources group leader, Brent Winsott.
Winsott and Bouque are admitted supervisors and/or agents within the
meaning of Sec. 2(11) and 2(13) of the Act. Bouque testified at the
hearing; Winsott did not.
5 This announcement was circulated through the Company’s internal
electronic mail (e-mail) system by Winsott.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1226
that the Respondent violated Section 8(a)(1) and (5) of the Act
by unilaterally implementing the rule barring radios at the Re-
spondent’s facilities without prior notice to and bargaining with
the Union. In support of its contention, the General Counsel
called union officials Robert Loudermilk and Ken Beaton as
witnesses.
Loudermilk testified that he has been employed as a techni-
cal associate at the Shelbyville plant in the maintenance de-
partment for about 12 years. He currently serves as president
of the Union and chairs its bargaining committee.
Loudermilk related that when Bouque announced the Re-
spondent’s intention to ban radios in the plant at the November
17 issues meeting, he asked what the Company’s concerns were
and was told by Bouque that they were safety related. Louder-
milk stated that he and union bargaining committee members
Dennis Weisel and Ken Beaton told Bouque that radios had
been allowed in the plant for at least 12–13 years (the time of
their employment at the plant) and requested that the Company
bargain over the matter with a view toward establishing some
mutually acceptable rules governing radio use. According to
Loudermilk, Bouque said the matter was not negotiable, that
the rule was being implemented by direction of the plant man-
ager, Robert “Bob” Rainey;6 the discussion ended on that note.
Loudermilk stated that after he received the company e-mail
announcing the radio ban, he sent an interoffice e-mail to
Rainey on behalf of the Union7 in which he stated the Union’s
position on the radio issue, mainly that radio usage had been
and was, heretofore, permitted by the Company and constituted
a permissible past practice and a privileged term and condition
of employment for the bargaining unit; that if the ban were
implemented without first bargaining with the Union, an unfair
labor charge would be filed with the Board. Loudermilk felt
that the ban constituted a unilateral mid-term change to the
contract. According to Loudermilk, he also sent an e-mail to
Winsott on November 20 requesting bargaining on the radio
ban and a stay of implementation pending the completion of
bargaining; Winsott was invited to contact the Union to discuss
scheduling meeting dates.8 According to Loudermilk, Rainey
never responded to his November 18 e-mail and management
did not meet with the Union at any time after November 20,
which was the last time the Union requested bargaining over
the matter.
Loudermilk stated that after the Company implemented the
radio ban, the Union filed a grievance on November 22, 2000,
against the Respondent, citing violations of specific provisions
of the agreement (and the agreement in general) as well as the
Act; the Union also requested a stay of what it regarded as a
mid-term change in the terms of the agreement.9
On November 29, 2000, the Respondent (through Bouque)

6 Rainey is an admitted supervisor/agent within the meaning of Sec.
2(11) and 2(13) of the Act. However, Rainey did not testify at the
hearing.
7 See GC Exh. 4.
8 See GC Exh. 5.
9 See GC Exh. 7. The grievance was submitted at step 3 of the
agreement’s grievance process (art. XII) which allows the union presi-
dent to present and discuss grievances with the human resources man-
ager.
denied the grievance. Accordingly, Loudermilk stated that on
November 30, the Union moved the grievance to step 4 of the
grievance process. However, according to Loudermilk, the
step-4 meeting between the parties has not been scheduled be-
cause the Union elected to file the instant charge on December
4, 2000.10
Loudermilk conceded that the ban, which he considered a
new rule, was not in itself arbitrary or unreasonable or in con-
flict with the agreement but that the Union viewed it as a term
or condition of employment. Loudermilk stated that he also did
not question the Respondent’s right to make the radio rule.
However, he thought that the matter should be the subject of
discussion with the Union in terms of how the rule was to be
implemented and what procedures would govern its applica-
tion.
Ken Beaton11 testified that during his 12-year employment
with the Respondent, radios were used freely around the plant
and that he has daily used and played his own radio from the
first week he started with the Company. Beaton stated that he
attended the November 17 issues meeting with Bouque and
that, essentially, she said that the radio ban was based on safety
concerns, such as the insecure and unsafe placement of over-
head radios, extension cords running across walkways and
wrapped around stairwells, and radios being wired directly into
shop electrical boxes.
Beaton acknowledged that both he and Loudermilk agreed
with management that radios used in these ways posed safety
issues. However, according to Beaton, the Union, nonetheless,
felt that radio usage was a matter subject to mandatory bargain-
ing irrespective of the Company’s concerns for safety. Accord-
ingly, the Union requested bargaining over the matter. This
position was rejected by the Company.
Regarding the Union’s handling of the matter after the ban
was instituted, Beaton essentially corroborated Loudermilk,
stating that the Union viewed the Respondent’s action to ban
radios as a proposal for a new rule, and not a new rule as con-
templated by the collective-bargaining agreement’s “zipper”
clause.12 Beaton also stated that article IX, another provision of
the agreement cited by the Respondent to justify its position,
did not apply because that provision related to discharge and
discipline of employees who violate company rules, not to
mandatory subjects of bargaining.
C. The Respondent’s Position
The Respondent admits that prior to November 22, there was
no formal or written rule or policy governing radio use at the
plant. However, arguing against the establishment of any past
practice allowing radios, the Respondent contends that since the
plant opened in 1988, plant managers prohibited them and
regularly reminded supervisors of the ban. The Respondent

10 Under the contract’s step-4 procedure, a meeting must be sched-
uled between the union bargaining committee and a company grievance
committee appointed by the plant manager within 5 workdays of a step-
3 answer from management.
11 Beaton has been employed by the Respondent as a technical asso-
ciate for about 12 years. He was elected as the vice president of the
Union in 1999, and serves as a member of the bargaining committee.
12 This “zipper” clause will be discussed in greater detail later herein.
BUDD CO. 1227
submits that it consistently enforced the prohibition on the pro-
duction shifts but may have overlooked radio playing by tech-
nical associates during scheduled production shutdown periods,
as well as on the weekends.
The Respondent essentially argues that about 2 weeks before
the November 17 meeting with the Union, it was forced for-
mally to ban radio usage because of what it deemed a danger-
ous upsurge in the use of radios by the production workers.
The Respondent asserts that the increase was accompanied by
actual and potential risks to the safe operation of the plant as
attested to by its manufacturing manager, James Gajdzik, and
its health and safety manager, Mike Welsh,13 and these con-
cerns were communicated to the Union on November 17 before
implementation of the rule, as well as in many post-
implementation conversations between Loudermilk and Amy
Bouque. The Respondent contends that it exercised good faith
toward and had no animus against the Union in implementing
the ban. The Respondent submits it was cooperative with the
Union and provided the Union with requested information used
by it to justify its action.
The Respondent principally argues that the instant litigation
redounds to a dispute over contract coverage and interpretation,
as opposed to an unfair labor practice. The Respondent submits
that the agreement between the parties contains specific lan-
guage allowing the Company to promulgate safety rules and
providing the Union with a specific avenue to challenge the
rules,14 which avenue the Union elected not to pursue. The
Respondent argues that the Union has waived its right to con-
test the prohibition. The Respondent contends that the General
Counsel inappropriately seeks the Board to intervene when, in
point of fact, through bargaining over the contract terms, the
parties have agreed that an arbitrator, in an expedited proce-
dure, should decide whether the rules are arbitrary, unreason-
able, or otherwise in conflict with the agreement.
The Respondent also asserts that article III, section (1) of the
collective-bargaining agreement creates certain rights and pre-
rogatives of management, including the right [under art.
XXVII] to make reasonable provision for the health and safety
of its associates. Further, that by virtue of the so-called zipper
clause [art. XXXVI], the Union and the Company agreed (gen-
erally) that the contract reflected their full agreement and each
party waived the right to bargain over matters covered by the
agreement or any matter not specifically referred to or covered
in the agreement.
In brief, the Respondent contends that article IX, the man-
agement-rights clause, and the zipper clause give it the right to

13 Gajdzik testified that he had personally tripped over a radio cord.
Welsh testified that he had actually received a couple of complaints of
falling radios. He also was concerned about Federal Occupational
Safety and Health Act (OSHA) noise reduction issues. Welsh testified
that he drafted the rule banning radios at the plant.
14 The Respondent relies on language in art. IX of the agreement,
which in sec. (2) allows the Company to make and enforce plant rules
and regulations to ensure orderly and efficient operations; and in sec.
(3) allows the Union to contest any rule deemed by it to be arbitrary,
unreasonable, or in conflict with the agreement and, within a mandatory
10-day period seek expedited arbitration of the rule in question. GC
Exh. 2, p. 10.
make such safety related rules. Because the provisions were
bargained for by each party at arm’s length, the Union waived
its right to contest the radio rule.
D. Applicable Legal Principles
When managerial decisions affect bargaining unit employees
and are “plainly germane to the ‘working environment,’” the
union has a right to bargain over such issues. Ford Motor Co.
v. NLRB, 441 U.S. 488, 498 (1979). Such decisions are manda-
tory bargaining subjects as long as they are “not among those
managerial decisions, which lie at the core of entrepreneurial
control.”15
The Board has held that equipment and work rules related to
job safety are “germane to the working environment, and not
among those managerial decisions which lie at the core of en-
trepreneurial control. AK Steel Corp., 324 NLRB 173 (1997).
Moreover, mandatory subjects of bargaining prohibit an em-
ployer from making such changes without giving the Union a
meaningful opportunity to discuss the changes. Flambeau Air-
mold Corp., 334 NLRB 165 (2001).
The Board and the Courts’ have held that longstanding prac-
tices, such as permitting employees to converse with union
officials in production areas, employer purchase programs, the
displaying of posters, calendars, and pictures on the walls of
work areas, in the Board’s view, are characteristics of the em-
ployment relationship so as to be terms and conditions of em-
ployment and therefore mandatory subjects of bargaining.
Fibreboard Paper Products v. NLRB, 379 U.S. 203, 222
(1964). The Board has specifically held that the promulgation
of a rule banning the use of all personal radios is not within the
realms of intrinsic management authority so as to exempt it
automatically from the category of mandatory subjects of bar-
gaining. Murphy Oil USA, Inc., 286 NLRB 1039 (1987). The
issue in bargaining cases is whether the change is of legitimate
concern to the Union as the representative of unit employees,
such that the union would be entitled to bargain about the mat-
ter on their behalf. Northside Center for Child Development,
310 NLRB 105 (1993).
Notably, it is well settled that Section 8(a)(1) and (5) are not
violated when the union has or may be said to have waived its
right to bargain about a specific subject. NLRB v. Katz, 369
U.S. 342 (1962); Borg-Warner Corp., 356 U.S. 342 (1958);
BASF Wyandotte Corp., 278 NLRB 173 (1986).
However, it is equally well settled that the waiver of a statu-
tory right will not be inferred from general contractual provi-
sions. Rather, such waiver must be clear and unmistakable.
Generally worded management rights clauses and/or zipper

15 In Ford Motor Co., in-plant cafeteria and vending machine food
and beverage prices and services were determined to be terms and
conditions of employment subject to mandatory collective bargaining.
See, also, Santa Rosa Blueprint Service, 288 NLRB 762 (1988), em-
ployer’s unilateral change in telephone policy affected all employees
and constituted a substantial modification of a privilege and was viola-
tive of Sec. 8(a)(1) and (5) of the Act; also Johnson-Bateman, 295
NLRB 180 (1989), implementation of drug/alcohol testing procedure
held to be a mandatory subject; and Hedison Mfg. Co., 249 NLRB 791
(1980), change in past practice of allowing employees to play radios
and using pay telephones held violative of duty to bargain.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1228
clauses will not be construed as waivers of statutory bargaining
rights. Johnson-Bateman, supra at 184. Notably, the matter
claimed to be waived must have been fully discussed and con-
sciously explored during negotiations and the union must have
clearly and unmistakably yielded its position for a waiver to
have occurred. Id. at 185. Thus, the bargaining history may be
examined to determine whether there has been a waiver of a
given subject.
E. Discussion and Conclusions
In my view, although radio usage was not necessarily wide-
spread in the plant and not always tolerated by management, it
is clear on this record that probably, since around 1988, the
Respondent’s technical and production employees were gener-
ally permitted to use radios at their work station during their
shifts16 and that much usage continued up until the Respondent
issued its prohibition on November 22, 2000. The Respondent
claims that, nonetheless, it had a policy prohibiting radio use at
the plant. However, in my view, such a policy, it if existed,
was not evenly and/or consistently enforced. The radio policy
may not have been even recognized or understood as such by
all or most of the employees, including management represen-
tatives.17 In any event, there certainly was no written policy
banning radios. On this point, I find it significant that among
the Respondent’s many and varied written and published rules
governing employee conduct in the work place, nowhere is
there a reference to radio usage. Also, significant is the fact
that the parties did not discuss radio use in the contract negotia-
tions in 1998. This suggests to me that radio use was probably
an accepted and long-time practice at the plant. This point is
further borne out by the circumstances leading up to the an-
nouncement of a formal ban on November. It seems uncontro-
verted that the Respondent was concerned not about usage of
radios, but the increased usage of the radios along with some
safety related concerns associated with them.
Thus, I would agree with the General Counsel and conclude
that the radio prohibition rule unilaterally implemented by the
Respondent on November 22, 2000 “affected all or a substan-
tial number of the unit employees and constituted a substantial
modification of a privilege [to use radios] which had been an
existing condition of employment,” supra at 764.18

16 In this regard, I have fully credited the testimony of Loudermilk
and Beaton, both of whom were long-term employees, who testified in
a straightforward and honest fashion about the general use of radios in
the plant by production and technical workers. Moreover, seemingly
widespread radio use at the plant was conceded by Gajdzik who stated
that from the beginning, radios started popping up throughout the plant.
In spite of a “policy” by the original plant manager prohibiting them,
radio use continued until around November 2000 when an increase in
usage became an issue for the Company.
17 I note that Bouque, a relatively new management employee, her-
self did not know that radios and CD players were prohibited because
she had to be reminded by a senior office worker of the rule. It is also
significant that company witness Rex Edwards, a group leader, testified
that he attempted to enforce the no-radio rule in his area and was told
by protesting employees that other workers were allowed to play ra-
dios. He decided to allow his employees to play radios.
18 The parties are in apparent agreement that there was no bargaining
over the implementation of the rule, which was deemed nonnegotiable
The issue of whether the Union waived its right to bargain
over the radio prohibition remains. As noted earlier in this
decision, the Board requires waivers of statutory rights to be
clear and unmistakable on the part of the party’s whose rights
are affected. The Respondent essentially argues that article IX,
section (3) of the agreement provides the sole mechanism for
the Union to contest rules made by the Company pursuant to
section (2) of article IX.
I have carefully read article IX, section (2), and, while it
does grant the Company the general right to make and enforce
rules “to provide for the safety of associates and equipment, it
does not directly address modifications or changes to existing
policies or past practices. Thus, the applicability of article IX
to the radio ban is not a foregone conclusion or legal cer-
tainty.19 The Union, of course, took the view that article IX did
not apply (at least exclusively) to redress the radio prohibition
on “due process” grounds. While the union representatives did
not elaborate on the meaning they attached to due process, it
appeared to me that the gravamen of the Union’s concerns was
that article IX only gave the Union contest rights after imple-
mentation of the ban. However, the Union wanted to discuss
the matter before implementation. Since the Respondent was
not willing to negotiate the matter prior to implementation, the
Union felt an unfair labor practice charge was the appropriate
mechanism to redress the issue.
The Union’s questioning of the application of article IX is
reasonable. First, there was no bargaining history (at least ad-
duced at the hearing) to clarify the application of the provision.
Second, in about August 1999, the Union and the Respondent
were at loggerheads about the application of article IX contest
procedures to the rules and regulations attached to but not in-
corporated in the collective-bargaining agreement. The Union
took the view that article IX applied; the Respondent opposed,
taking the view that the article applied only to “new or modi-
fied rules.”
On balance then, it seems to be there is or was substantial
controversy about the applicability of article IX to various is-
sues in the area of rulemaking. Clearly, here, the issues are
joined in that the Union views radio usage as a privilege ac-
quired years ago which hardened into a term and condition of
employment. The Respondent views banning radios a preroga-
tive of management to secure safety in the plant. Given these
circumstances and having no history to guide me, I would be
hard pressed to conclude that at the time the Union entered into
the agreement, as argued by the Respondent, the Union waived
its entitlement, clearly and without mistake, to bargain over a
subject it viewed as a long-held privilege and one which I have

on November 17, 2000, by Bouque, according to Loudermilk. In my
view, the conversations between the Union and the Respondent after
implementation are not bargaining.
19 In a letter dated August 11, 1999, to the Union, Bouque stated that
art. IX’s arbitration procedure only applied to new or modified rules
and not the preexisting rules that were appended to the collective-
bargaining agreement. (See GC Exh. 8.) The Respondent takes the
view that the radio ban implemented in November 22, 2000, was a new
rule. This is, of course, inconsistent with Respondent’s stated position
that there always was a rule or policy prohibiting radio use.
BUDD CO. 1229
found to be a mandatory subject of bargaining.20
The Respondent also asserts that the bargained for manage-
ment rights and the zipper clauses in the collective-bargaining
agreement also constitute waivers by the Union of the right to
bargain over the radio prohibition.
The pertinent management-rights clause, as cited by the Re-
spondent, appears in article III, section (1) of the agreement as
follows:
The terms of this Agreement establish the relationship be-
tween the Company and its associates. Except as specifically
abridged, delegated, granted, or modified by this Agreement,
all of the rights, powers, prerogatives, and authority the Com-
pany had prior to the execution of this Agreement are retained
by the Company and remain the sole and exclusive rights of
management.21
The “zipper” or agreement-completeness clause is contained
in article XXXVI of the agreement:
The parties acknowledge that, during the negotiations which
resulted in this agreement, each had the unlimited right and
opportunity to make demands and proposals with respect to any
subject matter not removed by law from the area of collective
bargaining, and that all understandings and agreements arrived
at by the parties after the exercise of that right and opportunity
are fully set forth in writing in this agreement. Therefore, for
the life of this agreement, each party voluntarily and unquali-
fiedly waives the right, and each agrees that the other shall not
be obligated to bargain collectively with respect to any subject
or matter referred to or covered in this agreement, or with re-
spect to any subject or matter not specifically referred to or
covered in 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.
In agreement with the General Counsel, I would conclude
that the management-rights clause and the zipper clause are
basically generally worded statements that cannot be construed
to embrace a clear and unmistakable waiver of the Union’s
right to bargain over a specific bargaining entitlement. Here,
too, the record is devoid of any bargaining history which would
support the Respondent’s position which, boiled to its essence,
is that the Union waived its right to bargain over specific rules
or policies unilaterally proposed by the Company the moment
the contract was executed. This certainly could not have been

20 I note in passing on this point that art. IX, sec. (3) allows the Un-
ion to contest rules it deems arbitrary, unreasonable, or in conflict with
the agreement. However, Loudermilk testified that he fully understood
and was sympathetic to the Company’s concerns about the safety issues
associated with radio usage, but merely wanted to discuss the matter so
that mutually agreed-upon rules and procedures could be developed.
Thus, the “exclusive” mechanism for contest of arbitrary and unreason-
able, as offered by the Respondent, may have been unavailing to the
Union.
21 Interestingly, this provision contains the following language which
appears immediately after the language quoted above:
Additionally, the Company will meet and confer and make its
best efforts to reach a consensus with the Union prior to initiating
or change Company policies relating to terms and conditions of
employment.
the intention of the parties. Nevertheless, there is no record
evidence to support this stance with regard to the radio rule at
issue here.
Accordingly, I conclude that in light of all these considera-
tions, the radio prohibition rule is a mandatory subject of bar-
gaining; that the Union did not waive its right to bargain with
the Respondent about the matter; and that the Respondent’s
unilateral implementation of the radio prohibition, without
providing the Union with prior notice and an opportunity to
bargain, violated Section 8(a)(5) and (1) of the Act. Johnson-
Bateman Co., supra at 180.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following described employees of the Respondent
constitute a unit appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All full time and regular part-time production and mainte-
nance employees, including all technical and production asso-
ciates and team leaders, employed by the Respondent at its
Shelbyville, Kentucky facility.
4. At all times material herein, the Union has been the ex-
clusive collective-bargaining representative of the employees in
the aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
5. By unilaterally promulgating and implementing effective
November 22, 2000, a prohibition of all radio usage at its facili-
ties without first bargaining with the Union, the Respondent has
engaged in and is engaging in an unfair labor practice within
the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent has not violated the Act in any other way
or manner.
THE REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)(5) and (1) of the Act, I
shall recommend that it be ordered to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act. The Respondent has unlawfully and unilater-
ally promulgated, instituted, and implemented a prohibition of
radio (and similar devices) usage at its facilities effective No-
vember 22, 2000. I shall recommend that the Respondent be
ordered to cease and desist from unilaterally implementing and
instituting any such prohibition. I also shall recommend that
the Respondent rescind the November 22, 2000 radio prohibi-
tion and, on request, bargain with the Union about the promul-
gation, institution, and implementation of any such prohibition
governing employees represented by the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1230
I shall also recommend that the Respondent fully restore the
status quo ante that existed at the time of its unlawful action by
removing from the files of employees all memoranda, reports,
or other documents resulting from the application of the radio
prohibition.
[Recommended Order omitted from publication.]