Michigan Bell Telephone Co.

281 306 NLRB No. 54 MICHIGAN BELL TELEPHONE CO. 1 On January 3, 1991, Administrative Law Judge Elbert D. Gads- den issued the attached decision. The Respondent and the General Counsel each filed exceptions, supporting briefs, and answering briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 Milwaukee Spring Division, 268 NLRB 601, 602 (1984), affd. 765 F.2d 175 (D.C. Cir. 1985). 3 See Johnson-Bateman Co., 295 NLRB 180 (1989). 4 No provision of the contract other than the zipper clause is as- serted to have effected such a waiver. 5 460 U.S. 693, 708 (1983) (footnote omitted). Michigan Bell Telephone Company and Commu- nications Workers of America, AFL–CIO. Case 7–CA–29252 February 11, 1992 DECISION AND ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH Exceptions filed to the judge’s decision in this case1 present the question of whether, during the term of a contract, the Respondent’s unilateral implementation of a substance abuse policy after bargaining to impasse with the Union violated Section 8(a)(5) and (1) of the Act. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and con- clusions only to the extent consistent with this Deci- sion and Order. After bargaining to impasse with the Union, the Re- spondent in May 1989 implemented a substance abuse policy that included discipline of employees who re- fused to submit to drug testing or whose test results were positive. The judge found that the Respondent’s implementation of this policy violated Section 8(a)(5) and (1) and (d) of the Act. The contract between the parties, effective from Au- gust 10, 1986, to August 12, 1989, contained no provi- sion concerning or referring to drug testing. The con- tract also contained a zipper clause which provided, inter alia, that the agreement was ‘‘in final settlement of all demands and proposals made by either party dur- ing recent negotiations’’ and that the parties ‘‘intend[ed] thereby to finally conclude contract bar- gaining throughout its duration.’’ The parties stipulated at the hearing that neither the substance abuse policy nor subject matters related to it were raised or dis- cussed during negotiations over the 1986–1989 con- tract. The judge found that the zipper clause did not con- stitute a clear and unmistakable waiver of the right to bargain over mandatory subjects not included in the contract or mentioned during negotiations for the con- tract. He further found, however, that the zipper clause could be ‘‘reasonably construed’’ as indicating that all bargaining, regardless of whether the subject was pre- viously demanded or proposed, would be precluded during the term of the contract. Based on this construc- tion of the zipper clause, the judge found that the Re- spondent had no right to implement its substance abuse policy without the Union’s consent after bargaining to impasse over it during the term of the contract. We do not agree. The legal context in which this case arises may be summarized by the following governing principles:2 Sections 8(a)(5) and 8(d) establish an employ- er’s obligation to bargain in good faith with re- spect to ‘‘wages, hours, and other terms and con- ditions of employment.’’ Generally, an employer may not unilaterally institute changes regarding these mandatory subjects before reaching a good- faith impasse in bargaining. Section 8(d) imposes an additional requirement when a collective-bar- gaining agreement is in effect and an employer seeks to ‘‘modif[y] . . . the terms and conditions contained in’’ the contract: the employer must ob- tain the union’s consent before implementing the change. If the employment conditions the em- ployer seeks to change are not ‘‘contained in’’ the contract, however, the employer’s obligation re- mains the general one of bargaining in good faith to impasse over the subject before instituting the proposed change. As the Respondent concedes, its substance abuse policy is a mandatory subject of bargaining.3 While the Respondent implemented its substance abuse policy during the term of the contract, this policy did not modify any provision of the contract. Thus, the re- quirement in Section 8(d) that the Union’s consent be obtained does not apply. Additionally, the Respondent did not fail to bargain over the substance abuse policy. On the contrary, the Respondent bargained to impasse with the Union before implementing the policy. Consequently, the Respondent’s implementation of its substance abuse policy did not violate Section 8(a)(5) unless the Respondent, by agreeing to the zip- per clause, waived its right to bargain, during the term of the contract, over mandatory subjects not addressed in the contract and not raised during bargaining.4 As noted above, the judge found such a waiver based on a ‘‘reasonable construction’’ of the zipper clause. The test governing waiver of statutory rights, such as the right to bargain over mandatory subjects, how- ever, is not whether the contract can be reasonably construed to effect such a waiver. Rather, as the Su- preme Court stated in Metropolitan Edison Co. v. NLRB:5 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Angelus Block Co., 250 NLRB 868, 877 (1980) (zipper clause must meet standard of any other form of waiver); see also Asbestos Workers Local 27 (Master Insulators), 269 NLRB 719, 721 (1984) (waiver of employer’s statutory right). 7 The zipper clause’s second sentence, indicating only that the con- tract ‘‘may be amended at any time by mutual consent,’’ merely reit- erates a principle embodied in Sec. 8(d) of the Act and provides no additional insight into the parties’ intent concerning the scope of the zipper clause regarding matters not raised in the contract or in con- tract negotiations. 8 The zipper clause here is in marked contrast to the one in GTE Automatic Electric, 261 NLRB 1491 (1982), which was found to have clearly and unequivocally waived the union’s right there to re- quest bargaining concerning a new benefit during the contract term. The clause there stated that for the life of the contract the parties voluntarily and unqualifiedly waive[d] the right . . . to bargain col- lectively with respect to any subject or matter referred to, or covered in this Agreement, or with respect to any subject or matter not spe- cifically referred to or covered by this Agreement even though such subject or matter may not have been within the knowledge or con- templation of either or both of the parties at the time they negotiated or signed this Agreement [emphasis added]. Similarly, the zipper clause here lacks the clarity of the one in Jones Dairy Farm, 295 NLRB 113 (1989), which stated that ‘‘nego- tiation on matters not covered by this Agreement is to be deferred until expiration of this Agreement.’’ That language was found to have waived the employer’s right during the contract term to imple- ment a condition of employment not covered by the contract. 9 GTE, supra. 10 Ibid. [W]e will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is ‘‘explicitly stated.’’ More succinctly, the waiver must be clear and unmistakable. The clear and unmistakable waiver test applies equally to alleged waivers contained in zipper clauses as it does to those contained in other contractual provi- sions.6 Accordingly, we cannot adopt the judge’s anal- ysis finding a waiver here. Applying the appropriate test, we find that the zip- per clause here did not waive the Respondent’s right to bargain during the contract term over mandatory subjects that were not addressed either in the contract or in bargaining over the contract. As noted above, the judge himself found that the zipper clause did not con- stitute a clear and unmistakable waiver of such a right. The operative language of the zipper clause states: 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.] We find that this language is ambiguous in that the term ‘‘thereby’’ may refer to the preceding language regarding ‘‘all demands and proposals made . . . dur- ing recent negotiations.’’ So construed, the clause waives bargaining only with respect to those demands and proposals that the parties made during contract ne- gotiations. Further, the presence of the word ‘‘con- tract’’ in the phrase ‘‘finally conclude contract bar- gaining’’ may imply that it is only as to contract mat- ters—not matters outside the contract—that the parties had concluded bargaining. Although it may not be clear that the foregoing is the correct interpretation of the parties’ intent, neither is it clear that the interpreta- tion given this language by the judge is correct.7 Thus, we cannot conclude that the zipper clause clearly and unmistakably waived the parties’ rights to bargain over mandatory subjects not mentioned in the contract or in the negotiations preceding the contract.8 Accordingly, as the Respondent’s substance abuse policy did not modify the parties’ contract and was im- plemented after bargaining to impasse, and as the zip- per clause did not clearly and unmistakably waive the parties’ rights to bargain over mandatory subjects of bargaining not mentioned in the contract or in negotia- tions over the contract, we conclude that the Respond- ent’s postimpasse implementation of its substance abuse policy did not violate Section 8(a)(5) and (1) of the Act. Contrary to our dissenting colleague, we believe that our result is wholly consistent with legal principles governing zipper clauses. In general, a zipper clause is an agreement by the parties to preclude further bar- gaining during the term of the contract. If the zipper clause contains clear and unmistakable language to that effect, the result will be that neither party can force the other party to bargain, during the term of the contract, about matters encompassed by the clause. That is, the zipper clause will ‘‘shield,’’ from a refusal to bargain charge, the party to whom such a bargaining demand is made.9 Similarly, under such a clause, neither party can unilaterally institute, during the term of the con- tract, a proposal concerning a matter encompassed by the clause. That is, the zipper clause cannot be used as a ‘‘sword’’ to accomplish a change from the status quo.10 However, where, as here, the purported zipper clause does not contain clear and unmistakable lan- guage, there is no waiver of the right to bargain. Thus, each party has the right, and the opposing party has the duty, to bargain about subjects not covered by the contract and not discussed in contract negotiations. Similarly, because these subjects are ‘‘open’’ for nego- tiations, a party can implement its proposals after bar- gaining to a good-faith impasse. Our dissenting colleague fears that, under these prin- ciples, an employer could refrain from raising a subject during negotiations for a contract and then raise the subject during the contract term, i.e., at a time when, according to the dissent, the union is less likely to strike. The simple answer to our colleague is that the evi- dence in this case does not establish that the Respond- 283 MICHIGAN BELL TELEPHONE CO. 1 See Johnson-Bateman Co., 295 NLRB 180 (1989). 2 See GTE Automatic Electric, 261 NLRB 1491 (1982). While finding that the zipper clause in GTE privileged the employer to re- ject the union’s midterm bargaining demand, the Board there empha- sized that it was permitting the employer to invoke the zipper clause solely as a shield, that the employer sought only to maintain the sta- tus quo regarding terms and conditions of employment, that the em- ployer had not made unilateral changes affecting unit employees, and that finding the employer’s conduct lawful accorded stability to the parties’ collective-bargaining relationship. None of these rationales apply in the present case. 3 Murphy Oil USA, 286 NLRB 1039 (1987). 4 There is no evidence concerning whether the Respondent had made plans to implement a substance control policy at the time the contract at issue here was being negotiated. It is noteworthy, how- ever, that the Respondent unilaterally implemented this policy just 3 months short of contract expiration, rather than deferring this mat- ter until negotiations over a new contract. 5 Sec. 1 of the Act. ent resorted to such a stratagem. Moreover, even if an employer did so, a zipper clause containing clear and unmistakable language would preclude the employer from raising or implementing the new subject during the term of the contract. Finally, our colleague’s approach would permit a party to refuse to bargain about unforeseen problems that arise during the term of the contract. Absent clear and unmistakable waiver language in the contract, we believe that the Act should encourage the parties to bargain in good faith concerning such matters. Further, it is only after good-faith bargaining to impasse or to an agreement that a party can institute the desired change. ORDER The complaint is dismissed. MEMBER DEVANEY, dissenting. By permitting the Respondent to implement its sub- stance abuse policy during the term of the contract without the Union’s consent, my colleagues encourage the use of the contractual zipper clause as a ‘‘sword’’ rather than a ‘‘shield,’’ providing employers an incen- tive to withhold from contract negotiations their planned changes in terms or conditions of employment. During the term of the parties’ contract, the Re- spondent unilaterally implemented a substance abuse policy that required discipline of employees who re- fused to submit to drug tests or whose drug test results were positive. Although my colleagues admit, as they must, that the Respondent’s substance abuse policy is a mandatory subject of bargaining,1 they nevertheless find that the Respondent’s unilateral implementation of this policy was permissible under the contract’s zipper clause. It is well settled that a zipper clause being wielded as a ‘‘sword’’ which would allow unilateral changes stands on different footing than a clause which is a ‘‘shield’’ to preserve current employment terms.2 Indeed, as the Board has stated, ‘‘the normal function of such [zipper] clauses is to maintain the status quo, not to facilitate unilateral changes.’’3 In allowing themselves to be sidetracked by the Respondent’s ‘‘clear and unmistakable waiver’’ argument, a red her- ring in this case, my colleagues overlook this para- mount principle. Under my colleagues’ interpretation of the zipper clause, by failing to raise the substance abuse policy during contract negotiations, the Respondent was privi- leged to raise and unilaterally implement it during the contract term; however, if the Respondent had raised the substance abuse policy in contract negotiations, it would have been precluded from implementing it uni- laterally during the contract term.4 Thus, my col- leagues’ finding that the Respondent’s actions here were lawful has the effect of encouraging employers not to raise in contract negotiations any changes in em- ployment terms they intend to make in the future that do not modify the contract. By waiting instead to raise a noneconomic matter, such as a substance abuse pol- icy, until the contract term has commenced, an em- ployer secures a significant tactical advantage, as a union is unlikely to strike solely over a matter that does not change wages or benefits. Thus, during the contract term, an employer may unilaterally implement such an employment condition with impunity, free from fear that a strike may result. My colleagues’ dis- missal of the complaint here encourages employers to refrain from raising intended changes during contract bargaining, a result that flies in the face of the Act’s purpose of ‘‘encouraging the practice and procedure of collective bargaining.’’5 Accordingly, I dissent. Ellen B. Rosenthal, Esq., for the General Counsel. Albert Calille, Esq., of Detroit, Michigan, for the Respond- ent. Kevin Conlon, District Counsel, of Itasca, Illinois, for the Charging Party. DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. Upon a charge of unfair labor practice conduct filed on May 9, 1989, by Communications Workers of America, AFL–CIO (the Union or Charging Party) against Michigan Bell Telephone Company (the Respondent), the Regional Director for Region 7, on behalf of the General Counsel, issued a complaint against the Respondent on November 20, 1989. In substance, the complaint alleges that on or about May 15, 1989, the Respondent implemented and since that date has enforced a substance abuse policy without the consent of the Union; and that by doing so, Respondent has failed and refused to bargain with the Union in good faith, in violation of Section 8(a)(1) and (5) and (d) of the Act. 284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On December 15, 1989, the Respondent filed an answer denying that it has engaged in unfair labor practice conduct as set forth in the complaint. The hearing in the above matter was held before me in Detroit, Michigan, on July 12, 1990. Briefs have been re- ceived from counsel for the General Counsel and counsel for the Respondent, respectively, which have been carefully con- sidered. On the entire record in this case, including my observation of the demeanor of the witnesses, and my consideration of the briefs filed by respective counsel, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a corporation organized under, and existing by virtue of, the laws of the State of Michigan. At all times material, Respondent has maintained its prin- cipal office and place of business at 444 Michigan Avenue, Detroit, Michigan, the only facility involved, where it is en- gaged in furnishing telephone communications service. During the year ending December 31, 1988, a representa- tive period, Respondent in the course and conduct of its busi- ness operations derived gross revenues in excess of $500,000, and purchased and caused to be transported and delivered at its several Michigan facilities, wires, telephones and other goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its several Detroit facilities directly from locations outside the State of Michigan. The complaint alleges, the answer admits, and I find that at all times material, Respondent was an Employer engaged in commerce, within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the parties stipulated, and I find that the Union, Communications Workers of America, AFL– CIO is, and has been at all times material, a labor organiza- tion within of the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE CONDUCT INVOLVED At all times material, the Union, by virtue of Section 9(a) of the Act, has been the exclusive representative of the Re- spondent’s employees for purposes of collective-bargaining. A. Background Facts Respondent operates its Detroit, Michigan business of pro- viding telephone communications service with its unionized servicing employees pursuant to an effective collective-bar- gaining agreement. The agreement (contract) contains a pro- vision which essentially states that the agreement was a set- tlement of all demands and proposals made during negotia- tions; and that negotiations were concluded for the duration of the agreement, although the agreement could be amended by mutual consent of the parties. Before expiration of the contract, the Respondent desired to implement a policy which it concedes is a mandatory sub- ject of bargaining. On or about May 15, 1989, the Respond- ent implemented and enforced the policy on the premise that the aforedescribed provision in the contract did not preclude it from implementing the policy, and if in fact it did, it was no longer binding on Respondent because Respondent and the Union had bargained to impasse on the policy; and that by bargaining to impasse on the subject policy, the Union waived any right it might have had not to bargain during the term of the contract. B. The Contract Provision in Dispute The Respondent and the Union were parties to a collec- tive-bargaining (Contract) which by its terms was effective from August 10, 1986, until August 12, 1989. Article 55.3, page 126 of the contract provided: This agreement is agreed upon in final settlement of all demands and proposals made by either party during re- cent negotiations, and the parties intend thereby to fi- nally conclude contract bargaining throughout its dura- tion. However, this agreement may be amended at any time by mutual consent of the company and the union. At the hearing the parties stipulated that in May 1989, the Respondent implemented and has since enforced a substance abuse policy without the consent of the Union, which policy includes testing as well as disciplinary penalty for refusal to submit to drug testing on request, and also for positive test results. The parties also stipulated that the Respondent and the Union bargained to impasse on the implementation of the above substance abuse policy; and that the subject policy had not been raised or discussed during the negotiations for the current (1986) contract (Jt. Exh. 1). The uncontroverted evidence of record shows that after the Respondent and the Union bargained to impasse, the Re- spondent implemented and has since enforced the above de- scribed substance abuse policy effective May 1, 1989, with- out even obtaining the consent of the Union. Neither party presented any witnesses but relied solely on the above stipu- lations and documentary evidence of record. Arguments Counsel for the General Counsel contends that in accord- ance with article 55.3 of the contract, the Union did not con- sent to implementation of the substance abuse policy; and that although the Union bargained to impasse with Respond- ent about the implementation of the subject policy, the Union was not required to bargain with Respondent and it has not consented to, or agreed with implementation of the policy by the Respondent. Respondent admits in its answer to paragraph 13 of the complaint that the subject substance abuse policy relates to wages, hours, and other terms and conditions of employees in the unit, and that it is a mandatory subject of bargaining for purposes of collective bargaining. However, Respondent argues that the contract does not provide a zipper clause; that article 55.3 of the contract does not constitute a zipper clause against midterm bargaining on matters not discussed during negotiations; and that if article 55.3 does constitute such a zipper clause, the Union has waived any contractually re- served right not to bargain during the term of the contract by bargaining to impasse on the substance abuse policy. Both parties here agree that the subject substances abuse policy was not a term or condition of employment in the cur- 285 MICHIGAN BELL TELEPHONE CO. rent contract (G.C. Exh. 1), or that any reference is made to such policy in the current agreement. With respect to a provision against midterm bargaining in an effective collective-bargaining contract, the General Coun- sel properly argues that Section 8(d) of the Act, preserves the status quo as to mandatory subjects of bargaining during the term of an agreement. Under this Section of the Act (8(d)) neither party under such circumstances may compel the other party to bargain during the term of the contract over any change in a term or condition of employment established by the contract, except by mutual consent of the parties. Jones Dairy Farm, 295 NLRB 113 (1989). Analysis and Conclusions It is particularly noted that the language of article 55.3 does not expressly refer to ‘‘demands and proposals’’ which were not made or referred to during the negotiations between the parties. However, the additional language of 55.3: ‘‘and the parties intend thereby to finally conclude contract bar- gaining throughout its duration,’’ literally and logically im- plies that the parties intended that bargaining on any subject during the term of the contract would be precluded. If this interpretation is correct, or reasonable, counsel for the Gen- eral Counsel appears to be supported in her position that if the parties bargain on demands and proposals made during the term of the contract, no changes may be made in any terms or conditions of employment as established by the con- tract. The one exception is that such changes may be made by mutual consent or agreement of the parties. This is so be- cause the zipper clause language of 55.3 was apparently in- tended to preserve the status quo of the contract with respect to any demands or proposals made during the term of the contract. Suffolk Child Development Center, 277 NLRB 1345, 1350 (1985). The General Counsel further argues that the Board has upheld a zipper clause which prevents changes in a collec- tive-bargaining agreement on subjects which are not covered by the agreement. This includes changes not within the knowledge or contemplation of the parties, GTE Automatic Electric, 261 NLRB 1491 (1982). Correspondingly, terms and conditions of employment which are not covered by a collective-bargaining agreement are placed on the same foot- ing as such terms and conditions in a contract under Section 8(d) of the Act. Jones Dairy Farm, supra. As the Board stated in GTE Automatic Electric, supra, 1491–1492: by permitting Respondent to invoke the zipper clause as a shield against the Unions’ midterm demand for bar- gaining over a new benefit, and by giving literal effect to the parties’ waiver of their bargaining rights, indus- trial peace and collective-bargaining stability will be promoted. A distinguishing feature noted in the GTE case is that the Respondent there, relying on a clear and unmistakable waiver of midterm bargaining in the zipper clause, refused the Unions’ request to bargain midterm on a matter not covered in the contract (pension plan). In construing the zipper clause of the contract, the Board held that by allowing the Respond- ent to defensively invoke the zipper clause as a shield against the Unions’ midterm demand for bargaining over a new ben- efit, it was giving literal effect to the parties waiver of their bargaining rights, and thereby promoting industrial peace and collective-bargaining stability. However, since the Respond- ent’s exercise of his right to refuse to bargain under the zip- per clause resulted in a discriminatory application of the pen- sion plan among the represented and unrepresented employ- ees, the Respondent’s conduct was found to be violative of Section 8(a)(1) and (5) and (d) of the Act. In the instant case, not only was there not a clear and un- mistakable waiver of bargaining rights by the parties on mat- ters not included in the contract, or demands and proposals mentioned during negotiations, but the Respondent and the Union voluntarily bargained on the substance abuse policy to impasse. So it is clear that the GTE case is distinguishable from the facts in the instant case. Additionally, although the Union here is invoking the zip- per clause as a defense to the Respondent’s demand for mid- term bargaining and its unilateral implementation of the sub- stance abuse policy, it is again noted that the zipper clause (55.3) does not constitute a clear and unmistakable waiver by the parties not to engage in midterm bargaining on manda- tory subjects of bargaining, not included or referred to in the contract or mentioned in negotiations for the contract. Counsel for the General Counsel further argues that zipper clause language in the instant case is clear and unambiguous, that the parties intended there would be no midterm bar- gaining on any mandatory subject of bargaining, whether or not the subject was raised in negotiations. However, while I do not find such specificity and clarity of expression in arti- cle 55.3 as was set forth in the zipper clause in GTE, supra, ‘‘that there would be no bargaining on any mandatory sub- ject of bargaining throughout the duration of the contract,’’ it would appear that the language of 55.3 is sufficient to sup- port the General Counsel’s conclusion. Perhaps more precisely in point is the case of Martin Marietta Energy Systems, 283 NLRB 173 (1987), cited by the General Counsel. There, the contract between the em- ployer and the Union contained the following provision: Article XV, Section 1. It is hereby agreed that this con- tract contains the complete agreement between the par- ties or their successors, and no additions, waivers, dele- tions, changes or amendments, shall be made during the life of this contract except by mutual consent, in writ- ing of the parties. It is obvious that the language in the Martin Marietta case is specific and explicit that no changes or additions in the terms or working conditions can be made in any manner, ex- cept by mutual consent of the parties in writing. While the language in the instant case (55.3) is not as ex- plicit as the language in the zipper clause in Martin Marietta, the parties nevertheless specifically agreed that their agree- ment was ‘‘a final settlement of all demands and proposals made by either party during negotiations,’’ and by which agreement, they intended that contract bargaining would end bargaining during the term of the agreement. The latter lan- guage may be reasonably construed that the parties intended that all bargaining, whether or not the subject was previously demanded or proposed, would nonetheless conclude bar- gaining during the term of the contract. The language of 55.3 goes further, by adding, the agreement ‘‘may be amended at 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD any time by mutual consent’’ of the company and the Union. The latter sentence, beginning with ‘‘However,’’ conveys the understanding that the agreement may be amended midterm only by the mutual consent of the parties. In view of the foregoing language analysis, interpretation, and cited legal authority, I give reasonable and literal effect to the language of the zipper clause (55.3) that ‘‘the parties intended to finally conclude all contract bargaining through- out its duration,’’ and that no bargaining should take place during the term of the contract. This is especially true since the contract’s zipper clause provides that the contract can be amended only on the consent of both parties. Martin Mari- etta Energy Systems, supra. Since the language of article 55.3 of the contract described above makes it clear that the agreement was the finality of all demands and proposals made by either party during recent negotiations, unless amended by mutual consent of the par- ties, it is clearly a zipper clause. As such, either party may clearly refuse to bargain about any demands and proposals made during the term of the contract. Although the parties may voluntary choose to bargain, they are not required to do so. However, if the parties do bargain during the term, no changes may be made in the contract terms without the mu- tual consent of the parties because mutual consent is required by the last sentence in article 55.3. Suffolk Child Develop- ment Center, supra. In the instant case, the Respondent and the Union bar- gained to impasse over the substance abuse policy but there was no mutual consent by the parties to implement the pol- icy. Under such circumstances, Respondent could not legally add to or change the terms of the contract (G.C. Exh. 1) by unilaterally implementing and enforcing the substance abuse policy (which was neither demanded nor proposed during ne- gotiation). Jones Dairy Farm, supra; Suffolk Child Develop- ment Center, supra. Midterm Contract Modification Even Section 8(d) of the Act does not impose a midterm bargaining obligation on parties if either party makes or re- ceives a proposal or demand, in the absence of a contract re- opener provision. Speedrack, Inc., 293 NLRB 1054 (1989). The contract in the instant case does not provide for a re- opener during the term of the agreement. In fact, it (55.3) precludes bargaining on any subject during the term of the contract, although the contract may be amended by mutual consent of Respondent and the Union, Hydrologics, Inc., 293 NLRB 1060 (1989). Speedrack, Inc., supra, cited by counsel for the General Counsel, is distinguishable from the facts before me because the subject of the unilateral change there, was wage rates ‘‘in an existing collective-bargaining agreement,’’ made without the consent of the union. However, there, unlike in the in- stant case, the change was made pursuant to the contract’s wage reopener after the parties had bargained to impasse. Here, the change or addition (a substance abuse policy) was not a subject in the existing collective-bargaining agreement, and the agreement does not contain a reopener provision. Consequently, Section 8(d) of the Act as applied in Speedrack, Inc., supra, addresses unilateral changes of provi- sions or subjects contained within an existing contract or zip- per clause thereof. The last sentence of Section 8(d) of the Act provides: That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collective shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such ter- mination or modification complies with subsections (1), (2), (3) and (4). Under this section the terms ‘‘termination’’ or ‘‘modifica- tion’’ appear to refer to the language or terms and conditions of employment in an existing contract, and not to subjects not mentioned within the contract, such as ‘‘the substance abuse policy’’ in the instant case. Respondent’s argument that by bargaining to impasse on Respondent’s implementation of the policy, the Union waived its right in the zipper clause against midterm bar- gaining, is unfounded, and certainly not supported by any ap- propriately cited legal authority. American Telephone & Tele- graph Co., 250 NLRB 47 (1980), cited by Respondent, is distinguishable from the instant case, as the General Counsel argues, because unlike here, the contract there, was silent on the matter of midterm bargaining. Consequently, even though the parties bargained gratu- itously to impasse on the substance abuse policy, they were not required to do so. In fact, they did so in spite of the ex- press language of the zipper clause that ‘‘there would be no midterm bargaining.’’ However, as previously construed, the language of the zipper clause (55.3) does not end there. It further provides that the contract may be amended by mutual consent of the parties. In the face of such language, it can not be reasonably found that the Union waived its right not to bargain by gratuitously bargaining to impasse with Re- spondent. At no time did the Union give its consent to the substance abuse policy and the Respondent was without au- thority to implement the policy without the consent of the Union to do so. Respondent appears to be equating the parties’ zipper clause language, ‘‘finally conclude contract bargaining throughout the duration of the contract,’’ with the relinquish- ment of a collective-bargaining right under the provisions of a collective-bargaining agreement. I do not read Respond- ent’s ‘‘waiver interpretation’’ of the zipper clause into the parties 55.3 zipper clause. It is clear by the zipper clause lan- guage of 55.3 that neither party was waiving any right to bargain on mandatory subjects of bargaining. Instead, both parties were agreeing not to bargain on any bargainable sub- jects during the term of the contract. They were not relin- quishing the right to bargain on any mandatory subject of bargaining. Such a waiver, of course must be made in clear and unmistakable language. The language of the zipper clause here does not address the subject of waiver, not to mention clear and unmistakable language. Although the Union bargained to impasse with Respondent about the substance abuse policy, its bargaining conduct, in the face of the language of article 55.3, is insufficient to con- stitute a clear and unmistakable waiver of its right not to bar- gain midterm under 55.3. Respondent further argues that the zipper clause (55.3) by its language is limited to only ‘‘demands and proposals’’ made by either party during contract negotiations. Respond- ent might be correct if the zipper clause ended at that junc- ture, but it does not. It continues by stating ‘‘the parties in- 287 MICHIGAN BELL TELEPHONE CO. tend to finally conclude contract bargaining throughout’’ du- ration of the contract. It is obvious that the parties were try- ing to avoid any bargaining whatsoever during the term of the contract and preserve the status quo of each party until expiration of the contract. Again, to assure preserving the status quo, the parties added the last sentence of the zipper clause, that the ‘‘agreement may be amended at anytime by mutual consent of the parties.’’ It is therefore clear that any amendment of the contract during its term had to have the consent of both parties. Since the Union never consented to the drug abuse policy, Respondent could not amend the con- tract by implementing the substance abuse policy, which it concedes is a mandatory subject of bargaining. I find that other arguments and cases cited by Respondent do not support its position and are not applicable to the facts in the instant case. Based on the foregoing uncontroverted evidence, cited legal authority, and reasons, I find that Respondent imple- mented and enforced the substance abuse policy in spite of the language of article 55.3 precluding any bargaining change in the collective-bargaining agreement with the Union; and that Respondent’s unilateral implementation of the substance abuse policy constitutes a failure and refusal to bargain with the Union as the exclusive collective-bargaining representative of the employees, in violation of Section 8(a)(1) and (5) and (d) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practice conduct, I shall recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent implemented and enforced a substance abuse policy without the consent of the Union, Respondent has violated the zipper clause of the collective- bargaining agreement and thereby, has failed and refused to bargain in good faith with the duly authorized collective-bar- gaining representative (the Union) of its employees, in viola- tion of Section 8(a)(1) and (5) and (d) of the Act. CONCLUSION OF LAW By unilaterally implementing and enforcing the substance abuse policy without the consent of the Union, the Respond- ent has failed and refused to bargain in good faith with the Union, and has restrained and coerced employees in the exer- cise of their rights guaranteed by Section 7, in violation of Section 8(a)(1) and (5) and (d) of the Act. [Recommended Order omitted from publication.]