TCI of New York

National Labor Relations Board - Board Decisions

Feb 26, 1991

301 N.L.R.B. 822 (N.L.R.B. 1991)

822
301 NLRB No. 122
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
TCI of New York, Inc. (Schenectady System) and
International Brotherhood of Electrical Work-
ers, Local 166, AFL–CIO. Case 3–CA–14628
February 26, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed on October 7, 1988, by Inter-
national Brotherhood of Electrical Workers, Local 166,
AFL–CIO, the Union, the General Counsel of the Na-
tional Labor Relations Board issued a complaint and
notice of hearing on January 6, 1989. The complaint
alleges that the Respondent, TCI of New York, Inc.,
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
of the National Labor Relations Act, as amended, by
unilaterally discontinuing its practice of granting an-
nual bonuses to unit employees. The Respondent filed
a timely answer to the complaint, admitting in part and
denying in part the allegations of the complaint, deny-
ing the commission of unfair labor practices, and rais-
ing affirmative defenses.
On April 14, 1989, the General Counsel, the Union,
and the Respondent filed a joint motion to transfer
case to the Board and a stipulation of facts. The parties
agreed that the charge, the complaint and notice of
hearing, the Respondent’s answer, and the stipulation
of facts, including attachments, would constitute the
entire record in this case and that no oral testimony is
necessary or desired by any of the parties. The parties
further stipulated that they waived a hearing before an
administrative law judge, the making of findings of
fact and conclusions of law by the administrative law
judge, and the issuance of an administrative law
judge’s decision. The parties agreed that the Board
should issue its decision containing findings of fact
and conclusions of law and an order.
On August 10, 1989, the Board issued an order ap-
proving the stipulation and transferring the proceeding
to the Board. Thereafter, the General Counsel and Re-
spondent filed briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this proceeding, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, is en-
gaged in the operation of a community cable antenna
television system at its principal office and place of
business in Schenectady, New York. During the 12-
month period preceding the parties’ stipulation of facts,
a representative period, the Respondent derived gross
revenues in excess of $500,000 and purchased and re-
ceived goods and services valued in excess of
$100,000 directly from points located outside the State
of New York. It is admitted, and we find, that at all
times material, the Respondent is, and has been, an
employer engaged in commerce and in operations af-
fecting commerce within the meaning of Section 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
A. Stipulated Facts
On April 5, 1974, the Union was certified as the
representative of a unit of installer-technicians and
service personnel employed at the Schenectady facility.
At all material times, the Union has been and is the
certified collective-bargaining representative of em-
ployees in the following unit:
All installers, technicians and service personnel in
the classifications set forth in Appendix A of the
parties’ 1988–1991 agreement; excluding all other
employees, office clerical employees, sales per-
sonnel, telemarketers, salesmen, audit employees,
professional employees, confidential employees,
managerial employees, Community Relations Di-
rector (i.e., Access Coordinator), Assistant to the
Community Relations Director and Channel 16
non-employee assistants and helpers, guards and
supervisors as defined in the Act.
Since the Union was certified, the parties have en-
tered into successive collective-bargaining agreements,
the most recent of which covers the period July 1,
1988, to June 30, 1991. The preceding agreement was
in effect from July 1, 1985, to June 30, 1988. The cur-
rent agreement, negotiations for which commenced in
May 1988, was ratified by unit employees in late July
1988. Currently, the unit has approximately 17 unit
employees.
Each year, from about 1977 until 1988, the Re-
spondent provided all employees, both unit and
nonunit, with a bonus program based on the number
of subscribers enrolled. Until 1988, the bonus program
paid each employee up to $75 for each calendar quar-
ter in which the Respondent achieved its projected in-
crease in subscriptions. The employees received the
bonuses in a lump sum during the first quarter of the
following calendar year. Thus, the Respondent paid the
1987 bonuses to employees in February 1988, when
each employee (unit and nonunit) at the Schenectady
facility received $150.
The parties’ current collective-bargaining agreement
contains no reference to the bonus program. None of
the preceding agreements referred to the bonus pro-
823TCI OF NEW YORK
1 The zipper clause in Columbus provided that:
It is the intent of the parties that the provision[s] of this Agreement will
supersede all prior agreements and understandings, oral or written, ex-
pressed or implied, between such parties and shall govern their entire re-
lationship and shall be the sole source of any and all rights or claims
which may be asserted in arbitration hereunder or otherwise.
The Union for the life of this Agreement hereby waives any rights to re-
quest to negotiate or bargain with respect to any matters contained in this
Agreement.
270 NLRB at 686.
gram. Neither party raised the subject of bonuses dur-
ing negotiations for the 1988–1991 agreement; nor did
the parties raise the issue of bonuses during the pre-
ceding contract negotiations.
In the summer of 1988, the Respondent designed a
new bonus program applicable to employees at the
Schenectady facility. Under the redesigned program,
the Respondent placed in a pool $10 for each net addi-
tional subscriber to basic television service and $4 for
each net additional subscriber to premium services
signed from January 14–June 30, 1988. The Respond-
ent made the first bonus payment under the new pro-
gram on August 11, 1988. Employees deemed eligible
by the Respondent to participate in the program each
received approximately $760. The Respondent made
no general announcement regarding the bonus to the
bargaining unit employees. The Respondent did not
provide any notification prior to August 11 to the
Union or to the unit employees that it was excluding
the unit employees from the redesigned bonus pro-
gram. Approximately 1 week after the bonus checks
were distributed to nonunit employees, the Respond-
ent’s general manager, Allan Sagendorf, advised the
Union’s stewards that the unit employees were not eli-
gible for the bonus because the 1988–1991 collective-
bargaining agreement did not provide for its payment.
The current agreement provides in part:
ARTICLE XXXI
SCOPE OF BARGAINING
A. The Employer and the Union acknowledge
that during the negotiations which resulted in this
Agreement, each party had and exercised the un-
limited right and opportunity to make demands
and proposals with respect to any and all lawful
and proper subjects of collective bargaining. This
Agreement fully and completely incorporates all
such understandings and agreements and super-
sedes all prior agreements, understandings and
past practices, oral or written, express or implied.
[Emphasis added.] Accordingly, this Agreement
alone shall govern the entire relationship between
the parties and shall be the sole source of any and
all rights which may be asserted in arbitration
hereunder or otherwise.
B. By reason of the foregoing, the Employer
and the Union, for the duration of this Agreement,
voluntarily and unqualifiedly waive any and all
rights to negotiate, discuss or bargain collectively
with respect to any subject not specifically re-
ferred to or covered by 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 executed this Agreement.
The language of article XXXI of the current agreement
differs from the ‘‘Scope of Bargaining’’ provision of
the preceding agreement, which provided as follows:
ARTICLE XXVII
SCOPE OF BARGAINING
The Employer and the Union acknowledge that
during the negotiations which resulted in this
Agreement, each party had the unlimited right and
opportunity to make demands and proposals with
respect to any subject or matter not removed by
law from the area of collective bargaining, and
the understandings and agreements arrived at by
the parties after the exercise of that right and op-
portunity are set forth in this Agreement. There-
fore, the Employer and the Union for the term of
this Agreement each voluntarily and unqualifiedly
waive the right, and each agrees that the other
shall not be obligated to bargain collectively with
respect to any subject or matter not specifically
referred to or covered in this Agreement, includ-
ing fringe benefits, even though such subject or
matter may not have been within the knowledge
or contemplation of the parties at the time they
negotiated or signed this Agreement.
The Respondent proposed the change in the lan-
guage of the ‘‘Scope of Bargaining’’ provision (art.
XXXI) quoted above during the 1988 contract negotia-
tions. The Respondent drafted the language in full
knowledge of and reliance on Columbus & Southern
Ohio Electric Co., 270 NLRB 686 (1984), enfd. sub
nom. Electrical Workers IBEW Local 1466 v. NLRB,
795 F.2d 150 (D.C. Cir. 1986), although the language
of article XXXI differs from the language in the zipper
clause at issue in Columbus.1 The Respondent did not
communicate to the Union its knowledge of and reli-
ance on the Board’s decision in Columbus.
Although the Union initially opposed any change in
the language of the ‘‘Scope of Bargaining’’ provision,
it ultimately accepted the Respondent’s proposal. There
was no discussion during negotiations regarding the
purpose or meaning of the new language or of the ef-
fect of the new language, if any, on the bonus program
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The parties stipulated that, other than the express language of art. XXXI
of the 1988–1991 contract, there is no extrinsic evidence bearing on the inter-
pretation or application of art. XXXI.
3 GTE Automatic Electric, 261 NLRB 1491, 1492 (1982).
4 The Respondent also contends that, assuming arguendo that it unlawfully
terminated the bonus program, it was not obligated to include unit employees
in the new program. The complaint does not allege, and the General Counsel
does not argue, that the Respondent’s failure to include unit employees in the
new program was unlawful. That issue is therefore not before us.
or any other term or condition of employment or past
practice.2
B. Contentions of the Parties
The General Counsel makes the following conten-
tions: that the yearly bonus had become an established
term and condition of employment for unit employees,
which the Respondent could not change or eliminate
without bargaining with the Union; that the Union did
not waive its right to bargain regarding the Respond-
ent’s unilateral elimination of the yearly bonus to unit
employees; that, absent evidence that the parties bar-
gained over the issue of the bonuses, the zipper clause
in the 1988–1991 agreement does not constitute a
waiver by the Union of its right to bargain over the
bonuses; that the Respondent’s change in its method of
computing the amount of the bonus and the timing of
the payments does not privilege it to refuse to continue
extending the bonus program to unit employees; and
that, by unilaterally eliminating the yearly bonus, the
Respondent, in contravention of Board law, has tried
to use the zipper clause as a ‘‘sword’’ to alter the sta-
tus quo, rather than as a ‘‘shield’’ to avoid bargaining
over issues that the parties had already decided.3 Ac-
cordingly, the General Counsel contends that the Re-
spondent unlawfully refused to bargain about its plans
to discontinue the bonus and unilaterally altered the
terms and conditions of employment of unit employees
in violation of Section 8(a)(5) and (1) of the Act.
The Respondent argues as follows: that the pre-1988
bonus program was a unilaterally bestowed past prac-
tice that falls within the purview of article XXXI of
the 1988–1991 agreement and thus is superseded by
the terms of that agreement; that the express language
of article XXXI presumptively constitutes a clear and
unequivocal waiver of the right to bargain over the
elimination of any past practice, including the sub-
scriber growth bonus; that the Union’s agreement to
the language of article XXXI constitutes a clear and
unmistakable waiver of its right to bargain over the
elimination of the subscriber growth bonus; and that
there is no extrinsic evidence rebutting the Union’s
clear and unmistakable contractual waiver of that right.
The Respondent further argues that the parties’ failure
to raise the bonus during the negotiations, despite the
opportunity to do so, demonstrates that the parties in-
tended that the bonus program would no longer be an
element of unit employees’ compensation.4
C. Discussion and Conclusions
There are, as the parties stipulated, no factual issues
to be resolved. For about 11 years, the Respondent ac-
corded its unit and nonunit employees a share in a
yearly bonus program, and in 1988, this program was
discontinued without notice to the Union. It is well set-
tled that a bonus paid consistently over a number of
years is a component of employee wages and a term
and condition of employment, even though not ex-
pressly provided for in the bargaining agreement, and
that it cannot be unilaterally altered or abolished by the
employer without affording the Union notice and an
opportunity to bargain. Gas Machinery Co., 221 NLRB
862, 865 (1975). Thus, the Respondent’s unilateral dis-
continuation of the bonus program constitutes an un-
lawful refusal to bargain unless, as the Respondent
contends, the Union has waived its right to bargain
over this matter. NLRB v. Katz, 369 U.S. 736, 743
(1962). The right to be consulted on changes in terms
and conditions of employment is a statutory right; thus,
to establish that it has been waived the party asserting
waiver must show that the right has been clearly and
unmistakably relinquished. Whether such a showing
has been made is decided by ‘‘an examination of all
the surrounding circumstances including but not lim-
ited to bargaining history, the actual contract language,
and the completeness of the collective-bargaining
agreement.’’ Columbus & Southern Ohio Electric Co.,
270 NLRB 686, 686 (1984), citing Bancroft-Whitney
Co., 214 NLRB 57 (1974) (other citations omitted).
We find that the Respondent has made such a showing
and that its unilateral discontinuation of the bonus pro-
gram for unit employees did not violate Section 8(a)(5)
and (1).
As an initial matter, we note that the bonus for unit
employees is a ‘‘prior . . . past practice,’’ and we find
that it falls under the language of article XXXI as pro-
posed during the 1988 negotiations and agreed to by
the Union. Thus, the focus of our inquiry is on what
effect, if any, the parties’ agreement to article XXXI
had on the Respondent’s obligation to continue paying
the bonus to unit employees or bargain with the Union
if it contemplated altering or discontinuing it. Clearly,
the presence of a zipper clause in successive contracts
will not, by itself, necessarily establish a waiver of
bargaining rights with regard to existing terms and
conditions of employment, especially when it is in-
voked to justify changes in existing benefits. GTE
Automatic Electric, supra at fn. 3.
This case, however, differs from those in which a
party relies on broad contractual language alone to es-
tablish that it had the right to act unilaterally with re-
gard to an existing term of employment not covered by
contract. Rather, according to the stipulated bargaining
history, during the 1988 negotiations the Respondent
proposed a new ‘‘Scope of Bargaining’’ provision. The
825TCI OF NEW YORK
5 We find this case distinguishable in this and other respects from Pepsi-
Cola Distributing Co., 241 NLRB 869 (1979), enfd. 646 F.2d 1173 (6th Cir.
1981), in which the Board found, despite the presence of factors relied on
here, i.e., the opportunity to negotiate contract terms, the specificity of the lan-
guage at issue, and the completeness of the parties’ agreement, that the union
had not waived the right to bargain over the elimination of a bonus. In Pepsi-
Cola, the Board inferred, in part from the employer’s practice of paying the
bonus even though the agreement’s zipper clause on its face relieved it of the
obligation to do so, that the parties intended to continue the bonus plan despite
the continued presence in the contract of a zipper clause. In that case, how-
ever, unlike here, the respondent made no proposal to change the language of
the zipper clause. Therefore, in that case, no event put the union on notice
that the employer contemplated a change in the bargaining relationship. Com-
pare also Aeronca, Inc., 253 NLRB 261, enf. denied 650 F.2d 501 (4th Cir.
1981).
6 Compare Aeronca, Inc., supra, 253 NLRB at 265 (where no new contrac-
tual provisions were proposed or discussed during negotiations that would rea-
sonably alert union to alteration of its rights concerning a bonus, union did
not waive right to bargain about Christmas turkeys by agreeing to zipper
clause carried over from previous agreements).
7 We emphasize that our analysis does not imply that employers may rely
on the broad wording of so-called ‘‘zipper clauses’’ alone to avoid bargaining
over changes in terms and conditions of employment. We adhere to the well-
settled view that a waiver of a statutory right must be conscious and informed.
However, where, as here, parties have negotiated new contractual language ex-
pressly providing that ‘‘past practices, oral or written’’ are to be superseded
by the terms of the agreement, a union may not avoid the inference that it
intended to relinquish the right to demand bargaining over the employer’s
abandonment of a noncontractual past practice solely by showing that during
bargaining over the provision, the union had not sought clarification of its
scope and meaning and the parties had not discussed the particular practice
at issue.
Our dissenting colleague appears to believe that our approach would place
on the Union the unreasonable burden of guessing as to the meaning or sig-
nificance of the Respondent’s proposed ‘‘zipper clause.’’ In fact, our approach
goes only to a failure to ask—not to a failure to guess—the meaning and ef-
fect of the proposed language. We emphasize that the Union’s failure to ex-
plore the meaning of the Respondent’s proposed language before agreeing to
it is important here in light of the clarity of the Respondent’s proposed lan-
guage, which plainly called for a redefinition of the role of the contract in
the parties’ relationship, and the Union’s initial opposition to the Respondent’s
proposal, which demonstrated that it was on notice that the new language
would significantly affect the parties’ relations.
proposed language expressly provided that the agree-
ment’s terms would supersede ‘‘all prior agreements,
understandings and past practices, oral or written, ex-
press or implied’’ between the parties. The previous
agreement did not contain such a provision. Although
the ‘‘Scope of Bargaining’’ clause in that contract ac-
knowledged the completeness of the negotiations and
contained a waiver of bargaining ‘‘with respect to any
subject or matter not specifically referred to or covered
in this Agreement, including fringe benefits,’’ it did
not delineate the relationship of the contract itself to
past practices or other noncontractual terms and condi-
tions of employment.5 By contrast, the new language
purported to alter the role of the contract in the parties’
relationship and to define its status with respect to ‘‘all
prior agreements, understandings and past practices.’’
We conclude that the Respondent’s proposal of such
a definition must be viewed as a meaningful act and
the proposal itself as a serious one. The proposal sig-
nified that the Respondent wished to obtain the
Union’s agreement to an alteration in the ground rules
of the bargaining relationship and that it sought to de-
fine all of its obligations through the contract’s express
terms. This proposal also put the Union on notice that
the Respondent was seeking such a change. The
Union’s resistance during bargaining to the new lan-
guage demonstrates that it also took the proposal seri-
ously and understood that it would have an impact on
the final agreement and on the parties’ obligations. In
light of the Union’s opposition to the proposal, we
cannot construe the Union negotiators’ failure to ex-
plore the meaning or purpose of the clause as evidence
that the Union reasonably believed that prior past prac-
tices, such as the bonus at issue here, would be unaf-
fected by the new language.6 In short, under the cir-
cumstances of this case, the Union, by accepting the
strongly worded proposal, knowingly agreed to define
the bargaining relationship as the Respondent had pro-
posed.7
In addition, the language of the provision itself is
both broad and explicit, and contains no ambiguity to
indicate equivocal intentions on the part of either
party. Article XXXI states that the parties have ‘‘exer-
cised the unlimited right and opportunity to make de-
mands and proposals with respect to any and all lawful
and proper subjects of collective bargaining.’’ After
acknowledging the comprehensiveness of the bar-
gaining, the provision then states that the agreement
‘‘fully and completely incorporates all . . . under-
standings and agreements’’ between the parties. This
language reveals that the parties have chosen to place
within the contract’s four corners all agreements aris-
ing out of the negotiations. The provision then speci-
fies its relation to pre-existing terms and conditions of
employment not embodied in it: it ‘‘supersedes all
prior agreements, understandings and past practices,
oral or written, express or implied.’’
In our view, the language of article XXXI serves the
same purpose in this agreement as it did in the parties’
contract in Columbus & Southern Ohio Electric, supra.
In affirming the dismissal of allegations that the em-
ployer violated Section 8(a)(5) and (1) by dis-
continuing a Christmas bonus, the court commented,
on language identical in relevant part to that here, that
‘‘[g]iven the comprehensive provisions on compensa-
tion contained within the agreement, this clause serves
to set aside all prior elements of compensation and re-
place them with the explicit compensation provisions
contained in the contract.’’ Electrical Workers IBEW
Local 1466 v. NLRB, supra, 595 F.2d at 155. In this
case, as in Columbus, the agreement contains provi-
sions covering a full range of terms and conditions of
employment, including employee compensation. Thus,
we find that under article XXXI the bonus plan is su-
perseded by the employee compensation terms of the
1988–1991 agreement. Bancroft-Whitney, supra, 214
NLRB at 57.
In light of the above, we conclude that the Union
has clearly and unmistakably waived its right to bar-
gain over the discontinuance of the bonus plan. Ac-
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In Johnson-Bateman Co., 295 NLRB 180, 184 (1989), the Board re-
affirmed the ‘‘well settled’’ principle that ‘‘the waiver of a statutory right will
not be inferred from general contractual provisions’’ such as zipper clauses.
cordingly, we further conclude that the Respondent did
not violate Section 8(a)(5) and (1) of the Act as al-
leged and we shall dismiss the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act representing the
unit of:
All installers, technicians and service personnel in
the classifications set forth in Appendix A of the
parties’ 1988–1991 agreement; excluding all other
employees, office clerical employees, sales per-
sonnel, telemarketers, salesmen, audit employees,
professional employees, confidential employees,
managerial employees, Community Relations Di-
rector (i.e., Access Coordinator), Assistant to the
Community Relations Director and Channel 16
non-employee assistants and helpers, guards and
supervisors as defined in the Act.
3. The Respondent and the Union have at all mate-
rial times been parties to a collective-bargaining agree-
ment covering the employees in the above-described
unit.
4. The Respondent has not violated Section 8(a)(5)
and (1) of the National Labor Relations Act.
ORDER
The complaint is dismissed.
MEMBER CRACRAFT, dissenting.
Based solely on the parties’ contractual zipper
clause, my colleagues find that the Union waived its
right to bargain over discontinuance of the past prac-
tice of granting annual bonuses. Because I would find
there was no clear and unmistakable waiver of the
Union’s bargaining right, I dissent.
The parties have had a bargaining reltationship since
the Union was certified in 1974. From 1977 until 1988
the Respondent provided annual bonus payments to
unit and nonunit employees. None of the successive
collective- bargaining agreements covering this time
period referred to bonuses. The zipper clause in these
contracts stated that the parties ‘‘waive the right . . .
to bargain collectively with respect to any subject . . .
not specifically referred to . . . in this Agreement, in-
cluding fringe benefits.
The current contract is in effect from July 1, 1988,
to June 30, 1991. The current contract’s zipper clause
states that the document ’’supersedes all prior agree-
ments, understandings and past practices, oral or writ-
ten, express or implied ¢and that the parties waive any
right to bargain about any subject not specifically re-
ferred to . . . by this Agreement . . . .’’ The Re-
spondent proposed the change in language. In drafting
the language, the Respondent relied on Columbus &
Southern Ohio Electric Co., 270 NLRB 686 (1984),
enfd. 795 F.2d 150 (D.C. Cir. 1986). The parties stipu-
lated that during bargaining there was no discussion of
bonuses; the Respondent did not mention Columbus to
the Union; the purpose or meaning of the new lan-
guage was not discussed; and the effect that the new
language would have on the bonus program was not
discussed. Further, the parties stipulated, ‘‘other than
the express language of [the zipper clause] of the
1988–1991 contract, there is no extrinsic evidence
bearing on the interpretation or application of [that
clause].’’
On August 11, 1988, the Respondent made bonus
payments to nonunit employees. Shortly after distrib-
uting the bonuses to nonunit employees, the Respond-
ent advised the Union’s stewards that unit employees
were not eligible for bonuses because the 1988–1991
contract did not provide for bonuses.
Waiver of a union’s right to bargain over changes
in terms and conditions of employment must be ‘‘clear
and unmistakable.’’ Metropolitan Edision Co. v.
NLRB, 460 U.S. 693, 708 (1983). In deciding whether
a zipper clause constitutes a wavier, the Board does
not simply look to the contractual language.1 Instead,
the Board examines the surrounding circumstances, in-
cluding bargaining history and past practice. Radioear
Corp., 214 NLRB 362, 364 (1974), supplementing 199
NLRB 1161 (1972). In Angelus Block Co., 250 NLRB
868 (1980), the Board summarized the relevant prin-
ciples as follows:
A zipper clause must meet the standard of any
other form of alleged waiver. It is well established
that in order to establish waiver of the statutory
right to bargain in regard to mandatory subjects of
bargaining, such as involved here, there must be
a clear and unequivocal relinquishment of such
right. Even where a zipper clause is couched in
broad terms, it must appear from an evaluation of
the negotiations that the particular matter in issue
was fully discussed or consciously explored and
the Union consciously yielded or clearly and un-
mistakably waived its interest in the matter. This
is particularly true where, as here, an employer re-
lies on the zipper clause to establish its freedom
to unilaterally change, or institute new, terms and
conditions of employment not contained in the
contract.
Id. at 877 (citations omitted).
827TCI OF NEW YORK
2 See also General Electric Co., 296 NLRB 844 (1989), enfd. mem. No.
89–1628 (D.C. Cir. Oct. 5, 1990), in which Columbus was cited for the propo-
sition that a waiver may be found ‘‘when the contract language is not so spe-
cific but the history of prior contract negotiations demonstrates that the subject
was discussed and consciously yielded.’’ The majority asserts that the change
in language put the Union on notice and the Union’s initial opposition evi-
dences that the Union took the proposal seriously. The majority, apparently,
likens the Union’s initial opposition to the substantial extrinsic evidence in Co-
lumbus. This, however, overlooks the express stipulation that there is no ex-
trinsic evidence regarding the current zipper clause. I cannot agree that the
change in wording in the 1988 bargaining compels a waiver finding. Obvi-
ously, even though the pre-1988–1991 contracts contained broadly worded zip-
per clauses, the Respondent could not argue the Union had waived the right
to bargain about the annual bonuses because the Respondent granted bonuses
to unit employees during those years. Given that the parties’ stipulation of
facts provides no details about the bargaining history or surrounding cir-
cumstances, I believe it inappropriate to find the 1988–1991 comprehensive
zipper clause any more effective as a waiver than the comprehensive zipper
clauses in the earlier contracts. The different wording alone, in the context of
this case, sheds no light on the Union’s intent in the 1988 bargaining.
Given the parties’ stipulation of facts, the Board
must decide, based solely on the contract language,
whether the zipper clause waives the Union’s right to
bargain about the Respondent’s discontinuing the an-
nual bonus payments to unit employees. Applying the
above principles, I conclude that the zipper clause did
not waive the Union’s right to bargain about dis-
continuance of the practice of granting annual bonuses.
The stipulation of facts establishes the following:
The Respondent obtained a change in contractual lan-
guage; the Respondent sought the change because it
desired to alter its past practice of granting annual bo-
nuses to unit employees; the Respondent did not ex-
plain, nor did the Union inquire about, the reason for
the change in language. It is inescapable on this record
that the bonus program was not ’’fully discussed or
consciously explored.
In finding a waiver the majority relies in part on the
similarity of language between the 1988–1991 contract
and the zipper clause in Columbus. In Columbus, the
union’s actions and statements during bargaining and
during the . course of a regional investigation which
related to the zipper clause demonstrated its under-
standing that the clause to which it eventually agreed
waived its right to bargain over, inter alia, the Christ-
mas bonus which was at issue in that case. The Board
recognized that the purpose of the waiver doctrine was
to determine ‘‘the parties’ intent’’ concerning the right
in question and this determination was made ‘‘from an
examination of all the surrounding circumstances in-
cluding . . . bargaining history.’’ Based on review of
the bargaining history—not simply based on the con-
tract’s language—the Board concluded the union ’’was
fully aware that all previous agreements were subject
to the zipper clause.’’ See Jones Dairy Farm, 295
NLRB 113, 115 fn. 13 (1989), and Suffolk Child De-
velopment Center, 277 NLRB 1345, 1350–1351 (1985)
(distinguishing Columbus).2 There is no similar bar-
gaining history evidence un the instant case. Indeed,
the parties expressly stipulated that ’’there is no extrin-
sic evidence’’ regarding the current zipper clause.
In sum, I believe the record shows the Respondent
devised a bargaining ploy, the success of which de-
pended on the Union’s not realizing the import of the
proposed change. Finding a waiver on the facts of this
case converts the doctrine into the offensive weapon
the Board has previously disavowed. ‘‘As the Board
has recognized, the normal function of [zipper] clauses
is to maintain the status quo, not to facilitate unilateral
changes.’’ Murphy Oil USA, 286 NLRB 1039 (1987);
GTE Automatic Electric, 261 NLRB 1491, 1493 fn. 3
(1982). See also Pepsi-Cola Distributing Co., 241
NLRB 869, 869–870 (1979), enfd. 646 F.2d 1173 (6th
Cir. 1981).
For these reasons, I cannot agree with my colleagues
that the Union waived its right to bargain about the
elimination of the bonus program. I therefore dissent
from the majority’s failure to find that the Respond-
ent’s unilateral discontinuance of the bonus program
violated Section 8(a)(5) and (1) of the Act.