International Broth. of Elec. Workers Local 1466, AFL-CIO v. N.L.R.B.
| Citation | 795 F.2d 150,122 L.R.R.M. 2948 |
| Decision Date | 08 July 1986 |
| Docket Number | No. 84-1322,AFL-CI,P,84-1322 |
| Parties | 122 L.R.R.M. (BNA) 2948, 254 U.S.App.D.C. 105, 55 USLW 2067, 104 Lab.Cas. P 11,901 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 1466,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Columbus and Southern Ohio Electric Company, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Petition for Review of an Order of the National Labor relations board.
Peter O. Shinevar, with whom Elliot Bredhoff and Laurence J. Cohen, Washington, D.C., were on brief, for petitioner.
Lawrence Blatnik, Atty., N.L.Rel.B., with whom Robert E. Allen, Associate Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Lawrence J. Song, Atty., N.L.R.B., Washington, D.C., were on brief, for respondent.
Guy Farmer, Washington, D.C., for intervenor, Columbus and Southern Ohio Elec. Co.
Before BORK and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BORK.
Petitioner International Brotherhood of Electrical Workers Local 1466, AFL-CIO ("IBEW" or "the union") appeals a decision by the National Labor Relations Board dismissing the union's complaint that Columbus and Southern Ohio Electric Company ("Columbus" or "the company") committed an unfair labor practice by refusing to bargain over its unilateral termination of the employees' Christmas bonus. We agree with the NLRB's conclusion that the integration sentence of the 1982 collective bargaining agreement eliminated the Christmas bonus as a term or condition of employment. Because the union, for that reason, had no right to bargain over the Christmas bonus when the company announced the discontinuation of the bonus, we affirm the Board's order dismissing the union's complaint.
Approximately forty years ago, Columbus began paying its employees an annual Christmas bonus. The bonus has never been the subject of a collective bargaining agreement between the company and the union. In mid-1982 the company and IBEW renegotiated their collective bargaining agreement. In a letter dated April 19, 1982, the company's representative notified IBEW that, upon the expiration of the current contract, Columbus wished to "terminate all other agreements, written or oral, between the parties, whether such agreements be in the form of letters, memoranda, grievance settlements or in any other form." Joint Appendix ("J.A.") at 162.
At the first renegotiation meeting, Columbus proposed a "zipper clause":
Section 2. It is the intent of the parties that the provisions of this Agreement will supersede all prior agreements and understandings, oral or written, expressed or implied, between such parties and shall govern their entire relationship and shall be the sole source of all rights or claims which may be asserted in arbitration hereunder or otherwise.
The Union for the life of the Agreement hereby waives any rights to negotiate, or to negotiate or bargain with respect to any matters contained in this Agreement.
J.A. at 167. By letter of May 7, 1982, the union sought to clarify the scope of the first sentence, asking the company for "a list and summary of all prior agreements and understandings, oral or written, expressed or implied, which the Company believes to have contractual affect [sic] between the parties." Id. at 169. The company answered in a letter of May 14, 1982, that it did not have such a list, and that the number of side agreements made by the parties over the years made it "virtually impossible to draw up an accurate list." Id. at 170. Columbus stated that it sought to terminate all existing agreements in order to "wipe the slate clean before the new contract went into effect." Id. During a contract negotiation meeting on May 19, 1982, the IBEW representative stated that he understood the intent of the zipper clause but indicated the union would complain to the NLRB about the company's refusal to offer a list of the agreements affected. See Columbus & Southern Ohio Electric Co., No. 9-CA-19066 (Sept. 7, 1983), J.A. at 205.
IBEW filed an unfair labor practice charge with the Regional Director of the NLRB, claiming that Columbus' failure to provide the requested list of side agreements constituted a breach of the company's duty to bargain. J.A. at 191. The Regional Director refused to issue a complaint on the ground that Columbus could not give IBEW information it did not possess. The Regional Director stated in a letter to the union that the employer sought "to clear the table so that all matters were subject to inclusion within one written agreement." Id. at 192. The union appealed to the General Counsel of the NLRB. IBEW argued that Columbus' position with respect to the zipper clause was broad, even including "past practices" within its scope, and that IBEW was entitled to know "specifically what the Company want[ed] ... removed" in the new contract. Id. at 195-96. But, on July 29, 1982, the appeal was denied. Id. at 200.
On August 25, 1982, after twenty-six separate bargaining sessions, Columbus and IBEW reached agreement on a new contract. J.A. at 205. The contract did not mention the Christmas bonus but did contain the zipper clause exactly as it had appeared in Columbus' original proposal. Id. At no time during the negotiations did either party make express reference in the issue of how the contract would affect the Christmas bonus. Id.
The company announced on November 23, 1982, that it intended to discontinue the Christmas bonus. J.A. at 205. IBEW filed a grievance on November 29, 1982, protesting the elimination of the bonus. When management did not accept the grievance, the union filed an unfair labor practice charge with the Regional Director of the NLRB, asserting that Columbus had unilaterally altered the Christmas bonus in violation of its statutory duty to bargain over terms and conditions of employment. Id. at 206.
Relying on authority that the waiver of statutory rights under the National Labor Relations Act ("NLRA") must be "clear and unmistakable," see J.A. at 208, the ALJ held for the union. The ALJ found that the issue of the Christmas bonus had never arisen during negotiations and that the company had admittedly not contemplated discontinuing the bonus until after the contract was executed. Id. at 210. The zipper clause, he therefore concluded, did not apply to the longstanding "unilateral[ ]" provision of the Christmas bonus, id., and he recommended that the company be ordered to cease and desist and to make the employees whole for the period during which Columbus was in violation of its duty to bargain. Id. at 214.
The Board, acting through a three-member panel, reversed the ALJ's decision. See Columbus & Southern Ohio Electric Co., 270 N.L.R.B. 686 (1984). The Board reviewed the "complete contract" and found that the agreement addressed "an entire spectrum of issues," including a large number of specific provisions covering wages and compensation. Id. at 687. This fact, coupled with the sweeping language of the zipper clause itself (e.g., "supersede all prior agreements and understandings," "shall govern the[ ] [parties'] entire relationship," "sole source of any and all rights or claims which may be asserted in arbitration here or otherwise"), led the Board to conclude that the zipper clause constituted a "clear and unmistakable waiver of the Union's right to bargain over the elimination of the Christmas bonus." Id.
Before we address the Board's holding that the zipper clause constituted an effective waiver of the union's right to bargain about the termination of the Christmas bonus, some statutory background is in order. Section 7 of the National Labor Relations Act guarantees employees the right to "bargain collectively through representatives of their own choosing," see 29 U.S.C. Sec. 157 (1982), and section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of [that] right[ ]." 29 U.S.C. Sec. 158(a)(1) (1958). More directly, section 8(a)(5) of the Act makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." 29 U.S.C. Sec. 158(a)(5) (1982). Section 8(d) of the Act defines this bargaining obligation as requiring the union and employer to "meet ... and confer in good faith with respect to wages, hours, and other terms and conditions of employment." 20 U.S.C. Sec. 158(d) (1982).
In NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), the Supreme Court announced that an employer's "unilateral change" in a subject matter within the scope of section 8(d) amounted to "a violation of Sec. 8(a)(5), for it is a circumvention of the duty to negotiate which frustrates the objectives of Sec. 8(a)(5) much as does a flat refusal [to bargain]." Id. at 743, 82 S.Ct. at 1111 (footnote omitted). Katz dealt with an employer's unilateral changes in the terms and conditions of employment during an ongoing contract negotiation, see id. at 737, 82 S.Ct. at 1108, but it is clear as well that making unilateral changes in the terms and conditions of employment during the pendency of an existing collective bargaining agreement also violates the duty to bargain. See Office & Professional Employees International Union, Local 425 v. NLRB, 419 F.2d 314 (D.C.Cir.1969).
An employer's "[p]ast practice" can become "clearly established as a term and condition of employment" subject to the duty to bargain. See 419 F.2d at 321. Specifically, a Christmas bonus, if tied to other remuneration and paid regularly over an extended period, becomes an element of wages and, therefore, a term and condition of employment that cannot be altered unilaterally. See 5 T. Kheel, Labor Law Sec. 19.04, at 19-17 to 19-19 & n. 5 (1984); compare NLRB v. Niles-Bement-Pond Co., 199 F.2d 713, 714 (2d Cir.1952) (...
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