Zipper Clause in contract Not A Waiver Of Right To Bargain

The collective bargaining agreement between the City of Kentwood, Michigan and the Police Officers Labor Council does not contain a specific clause dealing with take-home cars. The contract does contain a “complete agreement” or “zipper” clause which provides that “the Employer and the Union for the life 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, 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.”

For years, the City had a practice of assigning take-home cars to detectives. When the City changed the practice without bargaining, the Council challenged the decision through the grievance procedure.

An arbitrator granted the grievance, concluding there was an established past practice of assigning take-home vehicles to detectives. The Arbitrator stated that the “past practice became a distinct and binding working condition that could not be altered without the mutual consent of the parties where the collective bargaining agreement is silent on the assignment of take-home vehicles.”

The City challenged the Arbitrator’s decision in court. When a trial court overturned the Arbitrator’s decision on the grounds that it improperly ignored the “zipper” clause in the collective bargaining agreement, the Council appealed to the Michigan Court of Appeals.

The Appeals Court reinstated the Arbitrator’s decision. The Court reasoned that “a past practice that does not derive from the parties’ collective bargaining agreement may become a term or condition of employment which is binding on the parties. If a past practice becomes part of the employer’s structure and condition of employment, the past practice assumes the same significance as other portions of the collective bargaining agreement. Accordingly, where an employer institutes a practice and permits it to continue, it cannot later unilaterally change the practice.”

The Court was not persuaded by the City’s argument that the “zipper” clause acted as a waiver of its obligation to bargain. To be enforceable, the Court found, a waiver must be explicitly stated:

“Where an employer relies on contract language as a purported waiver to establish its right to change terms and conditions of employment not contained in the contract unilaterally, the National Labor Relations Board requires evidence that the matter in issue was fully discussed and consciously explored during negotiations and the Union must have consciously yielded or clearly and unmistakably waived its interest in the matter. The Arbitrator’s finding that the ‘zipper clause’ did not represent a clear and unmistakable waiver of the duty to bargain before altering the take-home vehicle practice applicable to detectives was not erroneous. Specifically, the CBA lacks a specific reference to take-home vehicles assigned to detectives. As such, the contract between the parties is not sufficiently specific to demonstrate that defendant clearly and unmistakably waived its right to bargain over changes in the take-home vehicle practice applicable to detectives.”

City of Kentwood v. Police Officers Labor Council, 2008 WL 4724271 (Mich.App. 2008).

This article appears in the December 2008 issue