Mead Corp.

National Labor Relations Board - Board Decisions

Jul 31, 1995

318 N.L.R.B. 201 (N.L.R.B. 1995)

201
318 NLRB No. 16
MEAD CORP.
The Mead Corporation, Fine Paper Division and
United Steelworkers of America, for itself and
on behalf of Local 12943. Case 10–CA–26266
July 31, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
Upon a charge filed by the Union, United Steel-
workers of America, for itself and on behalf of Local
12943, on September 28, 1992, the General Counsel of
the National Labor Relations Board issued a complaint
on February 25, 1993, against the Company, the Re-
spondent, alleging that it has violated Section 8(a)(5)
and (1) of the National Labor Relations Act. On March
16, 1993, the Respondent filed an answer admitting in
part and denying in part the allegations of the com-
plaint, and submitting affirmative defenses.
On April 16, 1993, the General Counsel filed a Mo-
tion for Summary Judgment. On April 20, 1993, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. On May 4, 1993 the Respond-
ent filed a response to the Notice to Show Cause. The
Charging Party filed a statement in support of the Mo-
tion for Summary Judgment.
Ruling on Motion for Summary Judgment
In its answer and response to the Notice to Show
Cause, the Respondent admitted in part and denied in
part the allegations of the complaint. In light of the
Respondent’s admission to all factual allegations in the
complaint, there is no material issue of fact that would
require a hearing. Further, for the reasons set forth
below, we find, on the basis of the undisputed record
evidence, that the Respondent has violated the Act as
alleged. Accordingly, we are granting the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation, is engaged in
the manufacture and distribution of paper products at
its facility in Kingsport, Tennessee, where it annually
purchased and received goods in excess of $50,000 di-
rectly from points outside the State of Tennessee.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees em-
ployed at the Respondent’s Kingsport, Tennessee
plant, including inspectors, sample carriers, sam-
ple room employees, press operators and helpers
in the Sales Service Department, plant janitors,
steam, electric, water plant employees, woodyard
employees, watchmen, store room employees, lab-
oratory employees (except special technicians and
engineers), instrument repair and landfill employ-
ees, but excluding passenger car chauffeurs, office
janitors, hospital, engineering and technical em-
ployees, laboratory special technicians and engi-
neers, wood procurement department employees,
sales department employees (except for inspectors,
sample carriers, press operators and helpers), ad-
ministrative and clerical, and supervisors as de-
fined in the Act.
At all times material, the Union, by virtue of Section
9(a) of the Act, has been and is the designated collec-
tive-bargaining representative of the employees in the
appropriate unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment, and has been recognized as the representative by
the Respondent. This recognition has been embodied in
the collective-bargaining agreement which is effective
by its terms for the period of January 24, 1991, to Jan-
uary 25, 1994.
At all times material, the Respondent, pursuant to
the collective-bargaining agreement, has maintained
‘‘the Mead Retirement Plan.’’ In this regard, article
XXV, section 1 of the agreement provides:
The Company agrees to maintain, during the term
of this Agreement, a retirement plan as agreed
upon with the Union. The terms and conditions of
the agreed upon retirement plan are set forth in
the document entitled the Mead Retirement Plan
for Hourly Employees of the Kingsport Mill
. . . .
On or about August 13, 1992, the Respondent, by let-
ter, invited the Union to meet and negotiate ‘‘selected
improvements in certain wage rates and benefits.’’
During the period August 25 through September 17,
1992, pursuant to the Respondent’s letter, the Re-
spondent and the Union met and bargained over certain
items, including, inter alia, a ‘‘voluntary retirement in-
centive to Maintenance Department Craft employees’’
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party contends that the program is a modification
of art. XXV. The General Counsel, however, does not make this
contention, and we find it unnecessary to reach it.
2 GTE Automatic Electric, 261 NLRB 1491 (1982).
covered under the collective-bargaining agreement. No
agreement was reached on this subject.
On or about September 17, 1992, the Respondent,
without the Union’s agreement or consent, imple-
mented its retirement incentive program for mainte-
nance department craft employees.
The General Counsel, in support of his Motion for
Summary Judgment, contends that article XXVIII of
the collective-bargaining agreement, commonly re-
ferred to as a ‘‘zipper clause,’’ prohibits the Respond-
ent from unilaterally implementing the ‘‘retirement in-
centive program’’ without the consent of the Union.
Article XXVIII provides as follows:
This Agreement is complete in writing and ex-
cludes all matters from further negotiation for the
duration of this Agreement, whether or not pre-
viously mentioned, and except as specifically pro-
vided to the contrary herein. Further, this Agree-
ment shall not be amended, changed, altered, or
qualified except by an instrument in writing duly
signed by the parties signatory hereto.
The General Counsel concedes that a ‘‘retirement in-
centive program’’ was not a term of the parties’ agree-
ment. However, the General Counsel argues, the con-
tract’s zipper clause forecloses ‘‘all matters’’ from bar-
gaining and change during the life of the contract.
Therefore the Respondent’s unilateral implementation
of the ‘‘retirement incentive program,’’ regardless of
whether impasse in bargaining has been reached, vio-
lated the provisions and requirements of Section 8(d)
of the Act, and thereby violated Section 8(a)(5) and (1)
of the Act.
In its answer to the General Counsel’s motion, the
Respondent admits the factual allegations of the com-
plaint but denies the legal conclusions alleged in para-
graphs 13 and 14. The Respondent further contends
that, as the ‘‘retirement incentive program’’ was not
covered under the existing collective-bargaining agree-
ment, the Respondent was free to implement the pro-
gram after bargaining to impasse with the Union on
the subject.
The Respondent also contends that it was not pre-
cluded from implementing its proposal by the ‘‘zipper
clause’’ of the contract, because the clause is ambigu-
ous, relying on Michigan Bell Telephone Co., 306
NLRB 281 (1992). It argues that because the clause
excludes ‘‘all matters from further negotiations for the
duration of the agreement’’ (emphasis added), the
clause refers only to matters that were previously ne-
gotiated. Therefore, only matters that were previously
negotiated are precluded from further bargaining and
from change.
In addition, the Respondent contends that the Union
waived any right it might have had under the zipper
clause when it negotiated concerning the retirement in-
centive program and bargained to impasse on the sub-
ject.
In support of the General Counsel’s Motion for
Summary Judgment, the Charging Party argues that the
Respondent, by offering the retirement incentives,
modified the agreed-on terms of the retirement plan
and article XXV, section 1, of the collective-bargaining
agreement. The Charging Party also argues that, be-
cause of the ‘‘zipper clause’’ of article XXVIII of the
collective-bargaining agreement, the Respondent could
not implement the retirement program without the
Union’s consent even if the Respondent did not mod-
ify the agreed-on retirement plan. Finally, the Charging
Party contends that an appropriate remedy would be to
require the Respondent to make the same monetary
offer to all bargaining unit employees whose age and
service qualifies them for retirement.
We agree with the General Counsel that the ‘‘zipper
clause’’ unambiguously precludes the Respondent from
implementing any new terms or conditions of employ-
ment, in the absence of assent by the Union. Bargain-
ing to impasse over the subject was not sufficient to
justify the unilateral implementation.
Section 8(d) of the Act provides that a party which
seeks to modify a term or condition of employment
‘‘contained in’’ a current collective-bargaining agree-
ment must obtain the consent of the other party before
implementing the change. If the condition sought to be
changed is not ‘‘contained in’’ the agreement, the obli-
gation is only the general one of bargaining in good
faith to impasse over the subject before instituting the
proposed change. Milwaukee Spring Division, 268
NLRB 601 (1984), affd. 765 F.2d 175 (D.C. Cir.
1985).
The contract here does not contain a retirement in-
centive program. Thus, absent a waiver, we assume
arguendo that Respondent would be free to implement
such a program after bargaining to impass.1 We be-
lieve that the ‘‘zipper clause’’ is such a waiver. The
clause excludes ‘‘all matters’’ from further negotia-
tions, irrespective of whether they were previously
mentioned. Since these matters are not subject to bar-
gaining, they obviously are not subject to the general
rule permitting change after a bargaining impasse. In
sum, such matters cannot be bargained and they cannot
be changed, absent consent.2 This point is reinforced
by the last sentence which forecloses any amendments
or changes except on consent.
The Respondent contends that the zipper clause is
ambiguous and does not constitute a clear and unmis-
takable waiver. It contends that the presence of the
word ‘‘further’’ in the zipper clause means that the
203MEAD CORP.
3 The Board distinguished the clause in Michigan Bell from the
clear waivers found in the zipper clauses in GTE Automatic Electric,
supra, and Jones Dairy Farm, 295 NLRB 113 (1989).
4 Standard Fittings Co. v. NLRB, 845 F.2d 1311 (5th Cir. 1988).
5 We decline to grant the Charging Party’s requested remedy. In
light of the conclusion that the change was forbidden by the con-
tract, it would be inappropriate to grant a remedy which extends the
change to additional employees.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
parties intended to preclude bargaining only as to items
that had been previously negotiated. As there had been
no bargaining about the retirement incentive program,
Respondent argues, there was no waiver of the right to
negotiate. Further, after bargaining to impasse, it was
free to implement its proposal.
In Michigan Bell, supra, relied on by the Respond-
ent, the zipper clause stated:
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.]
The Board there found no clear and unmistakable
waiver of the parties right to bargain over mandatory
subjects not mentioned in the contract or in negotia-
tions preceding the contract. Rather, it found that the
term ‘‘thereby’’ arguably referred to the preceding
phrase ‘‘all demands and proposals made . . . during
recent negotiations’’ and waived bargaining only as to
those demands and proposals made during contract ne-
gotiations.3
We find no ambiguity in the zipper clause here, and
we find none in the presence of the term ‘‘further,’’
as asserted by the Respondent. Rather, we find that the
clause waives bargaining as to ‘‘all matters’’ ‘‘whether
or not previously mentioned.’’ The presence of these
words precludes any reasonable interpretation that the
clause waived bargaining only as to matters that had
previously been the subject of negotiations leading to
the contract. The phrase ‘‘further negotiation’’ means
only that there will be no further negotiations concern-
ing any matter. We thus find that the clause constitutes
a clear and unmistakable waiver of the right to bargain
over mandatory subjects during the term of the con-
tract. Because of this waiver, the Respondent was not
free to implement any new terms and condition of em-
ployment after bargaining, without the assent of the
Union.
We also find no merit in the Respondent’s conten-
tion that the Union waived any rights it might have en-
joyed under the zipper clause because it did engage in
bargaining to impasse over the retirement incentive
program. Assuming arguendo that the Union bargained
to impasse, it neither expressed nor implied anything
that would indicate that it was consenting to a modi-
fication which, as discussed above, was foreclosed by
the contract.4
For the foregoing reasons, we find that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by its
implementing its retirement incentive program without
the consent of the Union.
CONCLUSION OF LAW
By the unilateral implementation of its retirement in-
centive program for certain maintenance department
craft employees, the Respondent has refused to bargain
with the Union over mandatory subjects of bargaining
within the meaning of Section 8(d) and in violation of
Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.5
ORDER
The National Labor Relations Board orders that the
Respondent, the Mead Corporation, Fine Paper Divi-
sion, Kingsport, Tennessee, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with United
Steelworkers of America and its Local 12943, as the
exclusive collective-bargaining representative of its
production and maintenance employees employed at its
Kingsport, Tennessee facility.
(b) Unilaterally changing terms and conditions of
employment of bargaining unit employees by imple-
menting the retirement incentive program for mainte-
nance department craft employees without the Union’s
consent.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind, on request of the Union, the retirement
incentive program for maintenance department craft
employees.
(b) Post at the Respondent’s Kingsport, Tennessee
facility copies of the attached notice marked ‘‘Appen-
dix.’’6 Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER STEPHENS, dissenting.
Contrary to my colleagues, I find ambiguity in the
language of the zipper clause, and I would remand this
case for a hearing to allow the introduction of evidence
to clarify this ambiguity. Accordingly, I would deny
the General Counsel’s Motion for Summary Judgment.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith with
United Steelworkers of America, and its Local 12943,
as the exclusive representative of the production and
maintenance employees employed at our Kingsport,
Tennessee facility.
WE WILL NOT unilaterally change the terms and con-
ditions of employment of bargaining unit employees
by implementing the retirement incentive program for
maintenance department craft employees without the
Union’s consent.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind, on request of the Union, the re-
tirement incentive program for maintenance department
craft employees.
THE MEAD CORPORATION