Petition — Ford Motor Co. (Chicago Stamping Plant) v. NLRB
Supreme Court brief1979
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JUN <4 1978
IN THE
Supreme Court of the United! BMitatesor. 1». vere |
OCTOBER TERM, 1977
No. 77-1806
FORD MOTOR COMPANY (CxHicaGo STAMPING PLANT),
Petitioner,
VS.
NATIONAL LABOR RELATIONS BOARD
and
LOCAL 588, UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, UAW,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT
THEOPHIL C. KAMMHOLZ
WILLIAM W. MCKITTRICK
MICHAEL G. CLEVELAND
115 South LaSalle Street
Chicago, Illinois 60603
WILLIAM J. ROONEY
JAMES R. JACKSON
Ford Motor Company
The American Road
Dearborn, Michigan 48121
Counsel for Petitioner
Of Counsel:
VEDDER, PRICE, KAUFMAN & KAMMHOLZ
115 South LaSalle Street
Chicago, Illinois 60603
Gunthorp-Warren Printing Company, Chicago e Financial 6-6565
TABLE OF CONTENTS
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Reasons for Granting the Writ. .....ccccccccsccccces
I. The Decision Below Conflicts with Decisions of
the First and Fourth Circuits and with an Earlier
Decision of the Seventh Circuit.............
ll. This Case Presents Questions of Substantial and
Recurring Importance in Collective Bargaining
and Therefore Is Appropriate for Decision by
Se SES 6 5 KE dEd Ge bkee eh Eahbeeicecencs
Conclusion
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TABLE OF AUTHORITIES
Cases
Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass
Co., 404 U. S. 157, 187 (1971)... 0... cece cenees 9
Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203
SEED a pkcd SS TeR sa HeNed sant neseeereeeosanes 5
Ladish Co., 219 NLRB 354 (1975), enf. denied, 538
ve Gy ee, ts ©.) Peeerereerreriie 5, 8, 10
McCall Corp., 172 NLRB 540 (1968), enf. denied, 432
i % £. fo SS Tr eee 5,8
McCall Corp. v. NLRB, 432 F. 2d 187 (1970)........ 7,8
NLRB v. Ladish Co., 538 F. 2d 1267 (1976)..... 6, 7,9, 10
NLRB v. Package Machinery Corp., 457 F. 2d 936
tt “ued titubssihbaren ited enake baese eons 7,8
Package Machinery Co., 191 NLRB 268 (1971), enf.
denied, 457 F. 2d 936 (1st Cir. 1972)............. 5,8
Westinghouse Electric Corp., 156 NLRB 1080 (1966),
enf. denied, 387 F. 2d 542 (4th Cir. 1967)........ 5,7,8
Westinghouse Electric Corp. v. NLRB, 387 F. 2d 542
DE Gu set caneek seh ede u obe dead encaeoadeen 7, 8,9
Statutes
ase NE sc BEN en ch twa nceeaetkeecees 2
National Labor Relations Act, 61 Stat. 136, 29 U. S. C.
4 EF fer ee rrr ome 2, 5, 6, 7
Supreme Court of the United States
OCTOBER TERM, 1977
ee
FORD MOTOR COMPANY (Cuicaco STAMPING PLANT),
Petitioner,
VS.
NATIONAL LABOR RELATIONS BOARD
and
LOCAL 588, UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, UAW,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT
Ford Motor Company, Chicago Stamping Plant (Company),
prays that a writ of certiorari issue to review the judgment of
the United States Court of Appeals for the Seventh Circuit
entered on April 18, 1978, enforcing an order of the National
Labor Relations Board against the Company.
OPINIONS BELOW
The opinion of the Court of Appeals (Appendix A, infra,
pp. Al-A17) is reported at 571 F. 2d 993 (1978). The Decision
and Order of the National Labor Relations Board (Appendix B,
infra, pp. A18-A45) is reported at 230 NLRB No. 101 (1977).
JURISDICTION
The decision of the Court below issued on February 22, 1978.
On March 23, 1978, the Court denied the Company’s Petition
for Rehearing En Banc (Appendix C, infra, p. A46). The
April 18, 1978, judgment of the Court below is reproduced as
Appendix D, infra, pp, A47-A48. The jurisdiction of this Court
is invoked under 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
The basic question is whether in-plant cafeteria and vending
machine food prices are “terms and conditions of employment”
within the meaning of Section 8(d) of the National Labor
Relations Act, as amended, and therefore mandatory subjects
of collective bargaining.
A subsidiary question is whether in-plant food services are also
“terms and conditions of employment” within the meaning of
Section 8(d) of the National Labor Relations Act.
STATUTE INVOLVED
The pertinent provisions of the National Labor Relations
Act, as amended (61 Stat. 136, 29 U.S.C. § 151 et seq.), are set
forth in Appendix E, infra, p. A49.
STATEMENT OF THE CASE
In this case a panel of the Court of Appeals enforced a
Decision and Order of the National Labor Relations Board in
which the Board, inter alia, found that the Company had unlaw-
fully refused to bargain with Local 588, International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (Union), concerning in-plant cafeteria and
vending machine food prices and services, and ordered the
Company to bargain with the Union concerning food services
and changes in food prices (App. A, p. Al7; App. B, pp. A26-
A27).
A—The Facts
The Company operates an automotive parts stamping plant
in Chicago Heights, Illinois (App. A, p. A2). Hourly rated
production and maintenance employees are represented by the
Union (App. A, p. A2).
The Company provides its employees two air conditioned
cafeterias and five air conditioned food vending areas (App. A,
p. A2). Since 1970, an independent food caterer, ARA Services
(ARA), has serviced these areas, providing food and vending
machines (App. A, p. A2; App. B, p. A32).
The agreement between the Company and ARA, subject to
termination by either party on 60 days’ notice, provides that
the Company will reimburse ARA for its direct costs of the
food and vending operations plus a 9% surcharge for administra-
tive costs and service fees (App. A, p. A3). If receipts
exceed this amount, the excess will be returned to the Company
(App. B, p. A20). If receipts are less than costs plus the
surcharge, the Company is obligated to subsidize ARA up to an
annual amount not to exceed $52,000 (App. A, p. A3). In
recent years the operations have been on a loss basis and the
Company has made up annual losses to ARA (App. A, p.
A3).
4
All employees are provided a 30-minute lunch period and
two 22-minute rest periods daily (App. B, p. A20). Although
they may do so, very few employees leave the plant during
their lunch breaks (App. B, p. A20). They are not entitled
te leave during the 22-minute breaks (App. B, p. A20).
Employees may bring their own food into the plant and
store it in their personal lockers (App. A, p. A2). A Union
witness testified that the lockers are not air conditioned and,
during the summer, become hot (App. A, p. A2; App. B, p.
A35). This witness also testified that employees have complained
about spoilage of food stored in their lockers (App. A, p. A2;
App. B, p. A35).
The present controversy developed when the Company was
informed by ARA that, effective February 9, 1976, it would
increase the prices of certain food items sold in the cafeteria
and vending areas by either 5 or 10¢ (App. A, p. AS). The Com-
pany advised the Union of ARA’s plans and refused the Union’s
request to bargain about the increases prior to ARA’s im-
plementing them and subsequently refused to bargain with the
Union about food prices and services (App. A, p. A5).
On February 16, 1976, the Union began a boycott of the
food service operations in which over half the employees
participated. This boycott continued until June 7, 1976, and
did not result in a reduction of food prices (App. A, p. A5).
From time to time prior to the February, 1976, price in-
creases, the Company had bargained with the Unio concerning
various aspects of the food services provided its employees—
for example, agreeing that there would be adequate personnel
to serve food in the cafeterias, that a facility would be located
in a new addition and that broken vending machines would be
promptly repaired (App. A, p. A4). At no time, however,
did the Company bargain with the Union regarding the prices
of food sold in the cafeterias or vending areas (App. A, p.
AS).
B—The Board’s Decision and Order
The Board, reversing its Administrative Law Judge, found
that the Company violaied Section 8(a)(5) and (1) of the
Act by refusing to bargain about the price increases and about
the in-plant food services, and by refusing the Union’s request
for information about food services at the plant (App. B, pp.
A23-A25). The Board held that this conclusion was mandated by
its rulings in four prior cases that “in-plant food prices are a
mandatory subject of bargaining”, notwithstanding that each
of the decisions was denied enforcement by a Court of Appeals
(App. B, p. A22).* The Board rejected the reasoning of the
Administrative Law Judge that these Courts of Appeals deci-
sions, coupled with the Board's failure to seek certiorari in the
most recent of them, indicated that the Board had accepted the
judicial view that in-plant food prices were mandatory subjects
of bargaining (App. B, pp. A23-A24). The Board stated that
regardless of the reversal of its earlier decisions by the Courts
of Appeals, “we adhere to our position that cafeteria and vend-
ing machine prices are a mandatory subject of bargaining”
(App. B, p. A23). The Board, inter alia, ordered the Company
to bargain with the Union with respect to food services and any
changes, “now in effect or hereafter made or proposed,” in food
prices charged employees (App. B, p. A27).
C—The Decision of the Court of Appeals
Quoting at length from this Court’s opinion in Fibreboard
Paper Products Corp. v. NLRB, 379 U. S. 203 (1964), and
particularly from Mr. Justice Stewart's concurring opinion, the
Court of Appeals held that in-plant cafeteria and vending
1. Westinghouse Electric Corp., 156 NLRB 1080 (1966), enf.
denied, 387 F. 2d 542 (4th Cir. 1967); McCall Corp., 172 NLRB
540 (1968), enf. denied, 432 F. 2d 187 (4th Cir. 1970); Package
Machinery Co., 191 NLRB 268 (1971), enf. denied, 457 F. 2d 936
(Ist Cir. 1972); Ladish Co., 219 NLRB 354 (1975), enf. denied,
538 F. 2d 1267 (7th Cir. 1976).
6
machine food prices and services materially and significantly
affect and have an impact upon terms and conditions of employ-
ment, and are therefore mandatory subjects of bargaining
(App. A, pp. A&-A10).? The Court of Appeals viewed the issue
of whether in-plant cafeteria and vending machine food prices and
services are terms and conditions of employment within the
meaning of Section 8(d) of the National Labor Relations Act as
a question to be resolved upon an evaluation of the relevant facts
of each case (App. A, pp. A8-A12). On this basis the Court of
Appeals factually distinguished this case from an earlier decision
by a different panel of the same Court, NLRB v. Ladish Co.,
53° F. 2d 1267 (1976), and from decisions by the First and
Fourth Circuits,’ all holding that the matter of in-plant cafeteria
and vending machine prices is not a mandatory bargaining
subject (App. A, pp. All1-A17).
According to the Court of Appeals, these factual distinctions
were: the Company retained control over cafeteria and vending
machine prices; the Company might make a profit from the
food service operation; since 1967 the Company and the Union
had bargained over in-plaai food services; bringing their own
lunches was not a viable alternative for employees; over half of
the Company's employees had boycotted the food service opera-
tions; and employees were represented by a single union (App.
A, pp. Al6-Al7).
2. Although both the Board and the Court of Appeals found
that the Company violated the Act by refusing to bargain with
respect to food prices and services, the basic dispute between the
parties concerned only the February, 1976, increase in food prices.
Services were only incidentally mentioned in an exchange of
correspondence concerning prices. At no time did the Union indicate
any aspect of services as to which it desired to bargain.
3. See cases cited supra n. 1.
REASONS FOR GRANTING THE WRIT
I. The Decision Below Conflicts with Decisions of the First
and Fourth Circuits and with an Earlier Decision of the
Seventh Circuit
By virtue of the decision below, there now is a conflict in
Courts of Appeals on whether in-plant food prices are manda-
tory subjects of collective bargaining. The decision below con-
Sicts with decisions of the Courts of Appeals for the First and
Fourth Circuits, which reached the opposite conclusion. In
Westinghouse Electric Corp. vy. NLRB, 387 F. 2d 542 (1967),
the Fourth Circuit, sitting en banc, overruled the earlier panel
decision and held that Section 8(d), as interpreted by this
Court in Fibreboard Paper Products Corp., supra, did not re-
quire the employer to bargain about price increases implemented
by an independent contractor which operated cafeterias in the
employer's facility. Subsequently, in McCall Corp. v. NLRB, 432
F. 2d 187 (1970), a panel of the Fourth Circuit held that in-
plant cafeteria and vending machine prices were not mandatory
bargaining subjects under the earlier Westinghouse decision and
rejected the argument that a different result should be reached
hecause the employer and not an independent contractor set
food prices. The First Circuit in NLRB v. Package Machinery
Corp., 457 F. 2d 936 (1972), held that cafeteria and vending
machine prices charged by an independent contractor, which the
employer subsidized, were not mandatory subjects of bargaining.
Moreover, the decision below conflicts with the Seventh Cir-
cuit’s earlier decision in NLRB v. Ladish Co., supra. In that
case, the Court held that the employer was not required to
bargain about food prices charged in vending machines owned
and maintained by an outside contractor.
Accordingly, certiorari should be granted to resolve this con-
flict between the Circuits and between different panels of the
Seventh Circuit. The assertions of the Court below that this
8
case is distinguishable from other decided cases dealing with
in-plant food prices simply do not withstand analysis.
First, both the Board and the Administrative Law Judge
recognized that this case presents the same issue which was
raised in the decisions of the First and Fourth Circuits and in
the earlier Seventh Circuit decision. As the Board stated: “The
Administrative Law Judge correctly found . . . that the present
case falls within the factual and legal context of the Board’s
decisions in Westinghouse Electric Corporation, McCali Corpo-
ration, Package Machinery Company, and Ladish” (App. B,
p. A22; footnotes omitted).* However, the Board did not deem
itself bound to follow these decisions and criticized the Adminis-
trative Law Judge for following them rather than following the
Board’s prior rulings.
Second, and fully as important, the “distinctions” focused
on by the Court are not material or are without legal significance.
A. Influence over Prices. Although the Court below sought
to find that the Company controlled food prices and services by
virtue of its right to review prices and the “leverage” afforded
by the subsidy agreement, much greater employer control was
involved in McCall Corp. v. NLRB, supra, where the employer
in fact established food prices and supplied the food. Likewise, in
both Westinghouse Electric Corp. v. NLRB, supra, and NLRB v.
Package Machinery Co., supra, the employers subsidized food
operations by providing rent-free space and equipment or cash.
B. Possibility of Profit. Although the Court below suggested
that this case was different from the other decided cases be-
cause of the possibility of profit by the Company, such a possi-
bility was, obviously, present in McCall Corp. v. NLRB, supra,
4. The Administrative Law Judge stated:
“It is unnecessary, in my opinion, to have discussed [West-
inghouse, McCall, Package Machinery and Ladish] in greater
detail for it is beyond question that in-plant food prices are a
mandatory subject of bargaining on the basis of the . . . Board
decisions. It seems equally clear that such prices are not a re-
quired subject of bargaining if the . . . court decisions be con-
trolling. The present case is therefore not one that requires in-
yr _— of the cases and underlying theory” (App. B,
p. .
9
where the employer controlled the entire food operation. In
any event, the mere possibility that unprofitable operations might
become profitable should not be significant.
C. Prior Bargaining. The reliance pla: 2d by the Court be-
low on prior bargaining between the parties over certain as-
pects of the food service operation simply ignores this Court's
holding in Allied Chemical & Alkali Workers v. Pittsburgh Plate
Glass Co., 404 U. S. 157, 187 (1971), that “[b]y once bargain-
ing and agreeing on a permissive subject, the parties . . . do
not make the subject a mandatory topic of future bargaining.”
Thus, the Company's prior bargaining with the Union about
certain aspects of the in-plant food service cannot, as a matter
of law, serve to distinguish this case from the other cited de-
cisions.
D. Lack of Viable Alternative. As in Westinghouse Elec-
tric Corp. Vv. NLRB, supra, and NLRB v. Ladish Co., supra,
the Company’s employees had, and many utilized, the alterna-
tive of bringing food into the plant rather than purchasing it
from the cafeteria or vending machines. For example, during
the boycott, most employees brought their lunches (App. B, p.
A40).
E. Boycott. The mere fact that certain employees were
disturbed enough by the price increase to boycott the food
services cannot convert those prices into subjects of mandatory
bargaining. As this Court held in Pittsburgh Plate Glass, supra,
and in Fibreboard Paper Products Corp., supra, the Act estab-
lishes a limited list of mandatory bargaining subjects. That list
cannot be expanded simply because certain employees are
interested enough to undertake some form of economic action
or, for that matter, file an unfair labor practice charge.
F. Number of Unions Involved. That the Company would
be obligated to bargain with only one union on food prices, a
fact on which the Court below placed some reliance, cannot
expand the scope of the Act’s mandatory bargaining require-
ments, Obviously, the statutory obligation to bargain does not
depend on the number of unions involved.
10
In sum, the efforts of the Court below to distinguish this case
from the decisions of the First and Fourth Circuits and its earlier
decision in NLRB v. Ladish Co., supra, are unavailing. This
case presents the same issue as was considered in those cases
and reaches the opposite conclusion.
Il. This Case Presents Questions of Substantial and Recurring
Importance in Collective Bargaining and Therefore Is Ap-
propriate for Decision by This Court
The novel and difficult character of the issues presented in this
case is evidenced not only by the split that now exists in the
Circuits but also by the conflict between the Seventh Circuit's
decision in this case and its prior decision in NLRB v. Ladish
Co., supra. Furthermore, notwithstanding the previous repeated
reversals by the Courts of Appeals, the Board has zealously ad-
hered to the principle that bargaining about food prices is re-
quired by the Act. The resulting uncertainty about whether
prices for in-plant food services are or are not subject to manda-
tory bargaining is detrimental to the development and mainte-
nance of stable collective bargaining relationships.
As the Board pointed out in Ladish Co., 219 NLRB 354
(1975), enf. denied, 538 F. 2d 1267 (1976), many employers
provide food services for employees.* The Court below treated
5. The Board stated:
“In a recent survey, 54 percent of the responding companies
provided food services for employees in a lunchroom with vend-
ing machines. Employee cafeterias are provided in 43 percent of
all companies. Vending machines (but not in a lunchroom) are
provided by 25 percent of the companies, and lunchrooms with
snack bar service are provided in 15 percent. Because the serv-
ices vary from one company location to another and respondents
were asked to check any of the services provided, the percentages
add to more than 100. The extended use of vending machines
is shown by a survey made by the Field Research Division of
the Paper Cup & Container Institute, New York. Of 1,264 plant
officials who replied to the survey, better than 8 of 10 are using
vending machines, with over 1 of 5 depending entirely upon
automatic vending. 4 Labor Policy and Practice, 245: 201-203.
See also data and conclusions cited in fn. 30 of the Administra-
tive Law Judge’s Decision in McCall Corporation, supra.” (219
NLRB at 357, n. 27)
11
the subject as controlled by the details of each case and, in
particular, by the distinctions discussed above. The tenuous
nature of those distinctions, singly or in combination, necessarily
leaves employers at whose facilities in-plant food services are
provided uncertain about whether bargaining as to food prices
is required. This uncertainty is compounded by the differences in
the conclusions reached by the Circuits, and, indeed, by the
different panels of the Seventh Circuit. Thus an employer—and
for that matter the representative of the employees as well—
must, in the absence of a determination by this Court, conjecture
not only as to how much weight each combination of distinc-
tions will be accorded but also as to which Court of Appeals or
panel thereof will hear the case.
The confusion which now exists and which affects a large
number of employers and employees can only be resolved by
this Court.
CONCLUSION
For these reasons, it is respectfully submitted that this peti-
tion for a writ of certiorari should be granted.
Respectfully submitted,
THEOPHIL C, KAMMHOLZ
WILLIAM W. MCKITTRICK
MICHAEL G. CLEVELAND
115 South LaSalle Street
Chicago, Illinois 60603
WILLIAM J. ROONEY
JAMES R. JACKSON
Ford Motor Company
The American Road
— Michigan 48121
tines ounsel for Petitioner
VEDDER, PricE, KAUFMAN & KAMMHOLZ
115 South LaSalle Street
Chicago, Illinois 60603
June, 1978.
Al
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
for the Seventh Circuit
No. 77-1707
ForD Motor COMPANY (CHICAGO STAMPING PLANT),
Petitioner,
vs.
NATIONAL LABOR RELATIONS BOARD
Respondent,
and
LocaL 588, UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW,
Intervenor.
On Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board.
Argued January 10, 1978— Decided February 22, 1978
Before SWYGERT and SPRECHER, Circuit Judges, and GRANT,
Senior District Judge.*
SPRECHER, Circuit Judge. The question in this appeal is
whether in-plant cafeteria and vending machine food prices and
services are “terms and conditions of employment’ under Sec-
tion 8(d) of the National Labor Relations Act, as amended, or
* Senior District Judge Robert A. Grant of the Northern District
of Indiana is sitting by designation.
A2
materially or significantly affect or have impact upon such
terms and conditions under the facts and circumstances of this
case.’
The appeal comes here for review of an order of the National
Labor Relations Board and upon the Board's cross-application
for enforcement. On December 1, 1976, an Administrative Law
Judge issued his decision recommending that the complaint be
dismissed. The Board’s decision and order issued on July 11,
1977, reversed the Administrative Law Judge and concluded
that cafeteria and vending machine services and prices are
mandatory subjects of collective bargaining. 230 NLRB No. 101
(1977).
I
The petitioner, Ford Motor Company (Company), operates
an automotive parts stamping plant in Chicago Heights, Illinois,
where it employs approximately 3600 hourly-rated production
employees working in three shifts and represented by the inter-
venor, Local 588 of the United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW (Union).
The Company and Union have been parties to a series of
national collective bargaining agreements supplemented by local
agreements. There is no other union in the plant.
The Company provides its employees with two air-conditioned
cafeterias seating a total of 450-600 persons and five air-
conditioned and enclosed vending machine areas, called “coke
cribs,” with a total seating capacity of 235-300 persons. All
employees have a 30-minute lunch period. The parties agreed
that it was not feasible for employees to leave the plant during
their food breaks. Mobile food vending trucks are not permitted
on plant property. }
Employees are permitted to bring their own food into the
plant and it may be eaten in the cafeteria or coke crib areas.
However, the food brought in may only be stored in ventilated
1 29 U. S.C. § 158(d).
A3
but not air-conditioned locker rooms. The employees have no
refrigeration facilties and in the summer months the lockers be-
come “very hot and sticky and smelly” with temperatures fre-
quently ranging from 80 to 100 degrees and causing food
spoilage. The Company has occasionally employed exterminator
services because of unsanitary conditions in the locker rooms.
Based on physical counts of usage, it appeared that assuming
a normal 5-day workweek, about 20-30% of the employees used
the Company cafeterias each day and, assuming that all em-
ployees used the vending machines, each employee used vending
machines about 342 times per day,
The two cafeterias and five vending machine areas are serv-
iced by a caterer, ARA Services, Inc., under a contract with
the Company dated February 11, 1972, which provides that
ARA shall:
furnish products of quality in accordance with purchasing
specifications that shall have been submitted to and ap-
proved by Ford, and in accordance with a price and portion
list for said manual food service and vending machines that
shall have been submitted to Ford and that shall be subject
to review at the request of Ford or contractor.
Under the agreement the Company furnishes rent-free space,
rent-free equipment (except the vending machines), all needed
utilities and maintenance whereas ARA furnishes the vending
machines, all food and beverages, and management and labor.
The agreement further provides that ARA shall be reimbursed
for all direct costs of food and vending operations plus an
allowance of general administrative costs equivalent to 4% of
net receipts plus a service fee of 5% of net receipts. If gross
receipts are less than the sum of the costs of the operation plus
the service fee, the Company is obligated to reimburse ARA
for the deficit by an annual amount not to exceed $52,000.
For all recent years, the operation has been on a loss basis and
the Company has made up the annual loss to ARA. Finally, the
agreement provides that ARA is an independent contractor and
A4
that the contract is terminable by either party upon 60 days
written notice.
Beginning with a letter dated October 29, 1967, from the
Company to the Union entitled “Improved Vending and Cafe-
teria Service,” the parties have bargained over various aspects
of the quality of service provided by the caterer (at that time
a predecessor of ARA). The 1967 letter provided in part that:
The Company recognizes its continuing responsibility
for the satisfactory performance of the caterer and for
providing the Union with a means for registering and ex-
peditious handling of complaints concerned with such
performance.
The letter, which was incorporated into the 1970 local collective
bargaining agreement, dealt with the staffing of service lines,
adequate cafeteria supervision, certain sanitary conditions, re-
stocking and repairing of vending machines, and menu variety.
The local agreement in effect during the material times in-
volved in this case became effective June 20, 1974, and con-
tinued through September 1976. The 1974 agreement included
the above “recognition” clause in slightly modified language
and other provisions dealing with cafeteria and vending services.”
2. 1. CAFETERIA SERVICE
The company assures the Union that steam table items will be
available at all times during the regular lunch period and that a
comparable selection of entrees, salads and desserts will be
available during all regular lunch periods. In addition, the
Company will make arrangements for a delicatessen type sand-
wich service in the cafeteria. Cafeteria supervision will be avail-
able during all lunch periods to ensure that employees will be
served in a reasonable length of time through the main serving
lines as well as to provide for the adequacy of food service,
condiments and utensils.
2. VENDING SERVICE AND VARIETY
To assure that vending machines will receive prompt servicing
in the event of a mechanical breakdown, a sticker will be affixed
to each machine indicating the number to call for repair.
Further, the Company assures the Union that a greater variety
of selections will be maintained in the existing vending machines
(Footnote continued on next page.)
AS
The Company has consistently refused to bargain with the
Union concerning prices set by ARA with its approval. The
present controversy developed when the Company informed the
Union that cafeteria and vending machine prices would be in-
creased on February 9, 1976. By a letter to the Company dated
February 13, the Union sought “to bargain with you regarding
[cafeteria and vending] prices and services.” On February 18,
the Company responded by letter stating that “(s]imilar requests
have been made by the Union in the past, and the Corapany’s
response has been the same, that food prices and services are not
a proper subject for negotiations.”*
Beginning on February 16, 1976, there was a boycott by
Union members of the cafeteria and vending operations, which
ended as to the cafeteria on May 19, 1976, and as to vending
machines on June 7, 1976. The Administrative Law Judge found
that “a substantial reason for abandoning the boycott was its
ineffectiveness in reducing prices.” He also noted that employees
mostly brought in their lunches during the boycott and its termi-
nation was due in part to the onset of hot weather with conse-
quent problems of spoilage of food.
Meanwhile on April 12, 1976, the Union had filed an unfair
labor practice charge against the Company. On May 26, 1976,
(Footnote continued from preceding page.)
and that the quality of such items will ti -
ag bs y il continue to meet Com
The Company recognizes its continuing responsibility for the
satisfactory performance of the caterer and for the expeditious han-
dling of complaints concerned with such performance.
3. By letter of March 23, 1976, the Union requested from the
Company information regarding cafeteria and vending machine oper-
ations, including the Company's maintenance responsibilities, profits
from food operations, control of prices and contractual relations with
the caterer. On April 9, the Company denied the Union's request for
information. Most if not all the information requested was disclosed
in the proceedings before the Board. The Board found and con-
cluded that the requested information was relevant to food prices and
services, and that its disclosure was necessary to the Union's fulfilling
its duty as a bargaining agent.
on te
A6
the Regional Attorney for the Board’s General Counsel for
Chicago issued a complaint against the Company. Our juris-
diction is derived from Sections 10(e) and (f) of the Act as
amended (29 U.S. C. § 160), the alleged unfair labor practices
having occurred in Illinois.
II
As early as 1949, the National Labor Relations Board held
that an employer had a statutory duty to bargain regarding the
prices of meals served at logging camps. Weyerhaeuser Timber
Co., 87 NLRB 672 (1949). Through the years the Board has
persisted in its position that in-plant cafeteria and vending
machine food prices and services are terms and conditions of
employment and hence mandatory subjects of bargaining.
Westinghouse Electric Corp., 156 NLRB 1080 (1966); Mc-
Call Corp., 172 NLRB 540 (1968); Package Machinery Co.,
191 NLRB 268 (1971); and Ladish Co., 219 NLRB 354
(1975).
These last four cases were all reversed by courts of appeals.
Westinghouse Electric Corp. v. N. L. R. B., 369 F. 2d 891
(panel decision), 387 F. 2d 542 (supervening en banc decision,
4th Cir. 1967); McCall Corp. v. N. L. R. B., 432 F. 2d 187
(4th Cir. 1970); N. L. R. B. v. Package Machinery Co., 457
F. 2d 936 (ist Cir. 1972); and N. L. R. B. v. Ladish Co., 538
F. 2d 1267 (7th Cir. 1976).
The Board takes the view that an Administrative Law Judge's
duty is to apply established Board precedent which the Supreme
Court of the United States or the Board itself has not reversed,
despite reversals of Board precedent by courts of appeals. /owa
Beef Packers, Inc., 144 NLRB 615, 616 (1963). In the present
case, the Administrative Law Judge reasoned that despite the
Board’s precedents in Westinghouse, McCall, Package Machin-
ery and Ladish, the reversals of those cases by courts of appeals
followed by the failure of the Board to seek certiorari from the
Supreme Court in the most recent case, N. L. R. B. v. Ladish
A7
Co., 538 F. 2d 1267 (7th Cir. 1976), indicated thai the Board
had acquiesced and changed its former position. The Adminis-
trative Law Judge therefore recommended that the complaint
against Ford Motor Company be dismissed.
The Board rejected the Administrative Law Judge’s reasoning
and said that “[w]ith ail due respect to the First, Fourth, and
Seventh Circuits, we adhere to our position that cafeteria and
vending machine prices are a mandatory subject of bargaining.”
230 NLRB No. 101 (1977),
Ill
Section 8(a)(5) of the National Labor Relations Act, as
amended,‘ makes it an unfair labor practice for an employer
to “refuse to bargain collectively with the representatives of his
employees. . . .” Collective bargaining is defined in Section 8(d)
as:
the performance of the mutual obligation of the employer
and the representative of the employees to meet at reason-
able times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment. . . .°
4. 29 U.S.C. § 158(a)(5).
5. 29U.S. C. § 158(d). The original National Labor Relations
Act of 1935 (the Wagner Act) did not contain a definition of
collective bargaining, but Section 9(a) provided that a majority
union shall be = ae mpemeananes of all employees in an
appropriate unit “for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, or other conditions of
employment . . .” (Emphasis added.) When the Labor Management
Relations Act of 1947 (the Taft-Hartley Act) substantially amended
the National Labor Relations Act, Section 9(a) was left unchanged
and Section 8(d) was first included. The parties to this case have not
directed our attention to, nor has our own research located, any
legislative history which would be particularly persuasive in an
attempt to give further content to the phrase “terms and conditions
of employment” in Section 8(d) or “conditions of employment” in
Section 9(a). See Legislative History of the Labor Management
Relations Act, 1947 (G. P. O., 1948), Vols. I and II. Possi ly the
only assistance in interpreting these phrases which the history affords
is summarized by Mr. Justice Stewart in his concurring opinion in
Fibreboard Paper Products Corp. v. N. L. R. B., 379 U. S. 203 at
220-221 (1964).
A8
The Supreme Court decision giving definitive substance to
the words “terms and conditions of employment” is Fibreboard
Paper Products Corp. Vv. N. L. R. B., 379 U. S. 203 (1964).
Inasmuch as what may be the key message of F ibreboard seems
to have been overlooked or at least summarily considered in
subsequent cases, it is crucial to the outcome of this case to
examine Mr. Chief Justice Warren’s opinion for the Court and
Mr. Justice Stewart’s concurring opinion in some detail.
The Court's Fibreboard opinion goes to great pains to empha-
size that each categorization of what is or is not a term or
condition of employment or what has or has not sufficient effect
or impact upon a term or condition so as to convert it into a
mandatory subject of bargaining, must depend upon the facts and
circumstances of each case. At the outset of the opinion, the
Court said at 209:
We agree with the Court of Appeals, that, on the facts
of this case, the “contracting out” of the work previously
performed by members of an existing bargaining unit Is a
subject about which the National Labor Relations Act
requires employers and the representatives of their em-
ployees to bargain collectively.
(Emphasis added.)
At the end of the portion of the opinion dealing with this sub-
ject,® the Court said at 215:
We are thus not expanding the scope of mandatory bar-
gaining to hold, as = do now, that the type of “contracting
out” involved in this case—the replacement of employees
in the existing bargaining unit with those of an independent
contractor to do the same work under similar conditions of
employment—is a statutory subject of collective bargaining
under § 8(d). Our decision need not and does not en-
compass other forms of “contracting out” or “subcontract-
ing” which arise daily in our complex economy.
6. In the middle of the opinion the Court said that “[t}he facts of
the present case illustrate the propriety of submitting the dispute to
collective negotiation.” (Emphasis added.) 379 U. S. at 213.
A9
The Stewart concurrence expanded further on the same theme’
at 218:
The question posed is whether the particular decision
sought to be made unilaterally by the employer in this case
is a subject of mandatory collective bargaining within the
Statutory phrase “terms and conditions of employment.”
That is all the Court decides. The Court most assuredly
does not decide that every managerial decision which
necessarily terminates an individual's employment is subject
to the duty to bargain. Nor does the Court decide that
subcontracting decisions are as a general matter subject to
that duty. The Court holds no more thar: that this em-
ployer’s decision to subcontract this work, involving “the
replacement of employees in the existing bargaining unit
with those of an independent contractor to do the same
work under similar conditions of employment,” is subject
to the duty to bargain collectively. Within the narrow
limitations implicit in the specific facts of this case, 1 agree
with the Court’s decision.
(Emphasis added. )
Even as all “contracting out” situations are not necessarily
either mandatory bargaining subjects or not mandatory bargain-
ing subjects, not all in-plant cafeteria and vending machine food
prices and services are necessarily one or the other. What is
peculiarly and particularly a question of fact should not be
converted into a matter of law, as Fibreboard strained to make
clear. Having done this, Mr. Justice Stewart then sought to
establish some guidelines for making the factual distinction.
While much of his concurrence is applicable only to “contract-
ing out” situations, some of his observations are applicable
generally.
For example, he gave recognition to the standard that a
particular matter may be either a term or condition of employ-
ment or may affect or have such an impact upon a term or
7. More recently, in Allied Chemical Workers v. Pittsburgh
Plate Glass Co., 404 U. S. 157, 179 (1971), the Supreme Court
held that “in each case the question is . . . whether {a particular
matter] vitally affects the ‘terms and conditions’ of . . . employment.”
Al0
condition that it nevertheless becomes a mandatory subject of
bargaining. At the same time he limited that standard as not
encompassing all matters which have an “effect-impact.” He
said at 223:
While employment security has thus properly been
recognized in various circumstances as a condition of
employment, it surely does not follow that every decision
which may affect job security is a subject of compulsory
collective bargaining.
* * * * *
In many of these areas the impact of a particular man-
agement decision upon job security may be extremely
indirect and uncertain, and this alone may be sufficient
reason to conclude that such decisions are not “with
respect to . . . conditions of employment.”
(Emphasis added.)
Mr. Justice Brennan, writing for the Court in Allied Chemical
Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 179
(1971), said “[w]e agree with the Board that the principle
of ... Fibreboard is . . . whether [a particular matter] vitally
affects the ‘terms and conditions’ of . . . employment.
Based principally upon the Stewart concurrence in Fibre-
board, the courts of appeals have sought to further develop the
standard for determining whether a particular matter “affects”
or “has an impact upon” a term or condition of employment.
Some courts have limited the “effect-impact” test by requiring a
“material” or “significant” effect or impact (see Seattle First
National Bank v. N. L. R. B., 444 F. 2d 30, 33 (9th Cir.
1971)), or a “substantial adverse effect” upon the employees
(see District 50, United Mine workers v. N. L. R. B., 358 F. 2d
234, 237 (4th Cir. 1966).°
8. As applied to in-plant cafeteria and vending machine food
prices and services see Westinghouse, supra 387 F. 2d at 548
(“. . . a significant or material relationship to wages, hours, or other
conditions of employment”) and McCall, supra 432 F. 2d at 188
(“whether the issue ‘materially affects the conditions of employ-
ment’”) (Sobeloff, J., dissenting).
All
IV
Applying the Fibreboard principles to the case at hand will
perhaps be simpler if we first determine how they have been
applied in this circuit generally and in this and other circuits
specifically to in-plant feeding.
This court adopted the case-by-case approach in interpreting
the analogous phrase “working conditions” in the Railway
Labor Act,’ holding that “[“t]he Act does not fix or authorize
anyone to fix generally applicable standards for working condi-
tions... .” Jn re Chicago North Shore & M. R. Co., 147 F .2d
723, 727 (7th Cir.) cert. denied, 325 U. S. 852 (1945).
In N. L. R. B. v. Ladish Co., 538 F. 2d 1267, 1272 (7th Cir.
1976), the Court said that “[w]Je hold that vending machine food
prices are not a material or significant condition of employment
at Ladish” (emphasis added). Furthermore, the opinion of
Judge Pell, which relies upon Fibreboard and upon Seattle First
National Bank v. N. L. R. B., supra, makes it clear that the
Court is applying the material or significant effect or impact
s‘andard rather than what may seem to be an entirely different
standard of “material or significant condition,” which, of course,
would be contrary to the statute itself.'°
The result in the Ladish case and the seemingly contrary dicta
in Inland Steel Co. v. N. L. R. B., 170 F. 2d 247, 251 (7th Cir.
1948), cert. denied, 336 U. S. 960 (1949), that “a provision
for in-plant feeding . . . could properly be designated as ‘wages,’
and... [is one of the] ‘conditions of employment,’ are easily
9. Section 2, First of the Railway Labor Act provides that “[i]t
shall be the duty of all carriers, their officers, agents, and employees
to exert every reasonable effort to make and maintain agreements
concerning rates of pay, rules and working conditions ... .” (Em-
phasis added.) 45 U. S. C. § 152, First.
10. 29 U.S.C. § 158(d) makes terms and conditions of employ-
ment mandatory subjects of collective bargaining, whether material
or significant or not. Fibreboard expanded the plain meaning of the
statute to include matters having material or significant effect or
impact upon terms or conditions.
Al2
reconciled on this basis, namely, that this circuit applies the
case-by-case approach and the standard of review of material or
significant effect or impact upon a term or condition of em-
ployment.
In two of the other three in-plant food cases, the case-by-case
approach was used. Westinghouse, supra 387 F. 2d at 547
(“. .. it appears that the Supreme Court's decision in Fibrebourd
was limited to a particular situation .. . .”); McCall, supra 432
F. 2d at 187 (Westinghouse was decided “under the circum-
stances of the case”). Nothing was said in this regard in Package
Machinery, supra, which relied heavily, however, on Westing-
house and McCall. Both Westinghouse and McCall also applied
the standard of review of material or significant effect or impact.
See footnote 8, supra.
Finally, in the closely-analogous cases determining whether
company-furnished housing is a term or condition of employ-
ment, courts have held that the result depends upon an evalua-
tion of the relevant facts of the particular case. See American
Smelting & Refining Co. v. N. L. R. B., 406 F. 2d 552, 553-
554 (9th Cir.), cert. denied, 395 U. S. 935 (1969).
Whether in-plant cafeteria and vending machine food prices
and services are a term or condition of employment is a close
and difficult question.
Mr. Justice Stewart, concurring in Fibreboard Corp. v.
N. L. R. B., 379 U.S. 203, 222 (1964), said that “[i]n common
parlance, the conditions of a person’s employment are most
obviously the various physical dimensions of his working en-
vironment” and “[w]hat one’s hours are to be, what amount of
work is expected during those hours, what periods of relief are
available, what safety practices are observed, would all seem
conditions of one’s employment.” The food one must pay for
and eat as a captive customer within the employer’s plant can be
viewed as a physical dimension of one’s working environment.
Ladish itself recognized that some aspects of in-plant feeding
are terms and conditions of employment. The Court there noted
Al3
A _—Fa—EEEEe
that “[t}he Company does not dispute that it is required to
bargain over hours of employment, including the lunch period.”
538 F. 2d at 1271. This Court, in Ladish, however, distinguished
“the vague dicta in /nland Steel, which in any event could mean
nothing more than the obvious requirement that a company
would have to bargain on some phases of ‘in-plant feeding,’
e.g. the time for the purpose.” Jd. at 1272.
The following analogous matters have been held to be terms
or conditions of employment and hence mandatory subjects of
collective bargaining:
Safety rules and practices—N. L. R. B. v. Gulf Power
Co., 384 F. 2d 822, 825 (Sth Cir. 1967).
Rules concerning employee discipline, smoking and
dress—S. S. Kresge Co. v. N. L. R. B., 416 F. 2d 1225,
1229-1230 (6th Cir. 1969).
Rental rate for company-furnished housing—American
Smelting & Refining Co. v. N. L. R. B., 406 F. 2d 552
(9th Cir.), cert. denied, 395 U.S. 935 (1969);N. L. R. B.
v. Lehigh Portland Cement Co., 205 F. 2d 821 (4th Cir.
1953).
Gas price discount for employees—N. L. R. B. v. Cen-
tral Illinois Public Service Co., 324 F. 2d 916 (7th Cir.
1963).
Level of heat in plant—N. L. R. B. v. Washington
Aluminum Co., 370 U. S. 9 (1962).
But despite the fact that we are dealing with a close question,
we accept, as we must in the absence .of en banc consideration,
the holding of Ladish, which we interpret to mean that under
the facts and circumstances Ladish in-plant vending machine
food prices were not a term or condition of employment.
We hold, however, that under the facts and circumstances of
this case, in-plant cafeteria and vending machine food prices and
services materially and significantly affect and have an impact
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The facts and circumstances of this case (set forth in Part I)
differ from those in Ladish, Westinghouse, McCall and Package
upon terms and conditions of employment, and therefore are
Machinery as summarized in chart form as follows:
mandatory subjects of bargaining.
Al6
We continue to operate under the constraints of Universal
Camera Corp. v. N. L. R. B., 340 U. S. 474, 488 (1951),
which referred to the National Labor Relations Board “as one
of those agencies presumably equipped or informed by experi-
ence to deal with a specialized field of knowledge, whose findings
within that field carry the authority of an expertness which
courts do not possess and therefore must respect.” The Board
made the following distinctions between the present case and
Ladish:
Unlike Ladish, where the respondent had no input on
prices, the Respondent in this case retains influence over
cafeteria and vending machine prices by its right to review
prices and its leverage of the subsidy agreement. In addi-
tion, there also exists the possibility for the Respondent to
make a profit on the food service operation. Also, since
1967, the parties in this case have bargained over in-plant
food services. No such bargaining history was present in
Ladish. Moreover, in Ladish, the court implied that “brown-
bagging” is a viable alternative to purchasing lunch from the
commercial food service. However, in this case, employees
have complained about spoilage of food stored in their
lockers until lunch, as well as unsanitary conditions in the
locker room (wherein the Respondent has found it neces-
sary on occasion to exterminate). Additionally, the em-
ployees have apparently been so concerned with the food
pricing that over half of them participated in a boycott of
the Respondent’s food service operations. There was no
such labor strife involved in Ladish. Lastly, in Ladish the
employees were represented by seven unions. The court
therein projected that each time the food prices were raised
“the Company could be compelled to engage in seven
rounds of negotiations.” 538 F. 2d at 1272. This fact, the
court declared, “provides a good example of a situation in
which bargaining could be both disruptive of stable rela-
tions and economically wasteful.” Jd. In the instant case,
however, the employees are represented by a single union.
While we adhere to the view that the number of unions
representing employees at a single plant is not a factor in
resolving this issue, we nevertheless note that, even in the
6) atone a
Al7
court’s view, there is no potential for conflicting union
demands in this case.
We agree with the Board that the distinctions which it has
found are material and significant, that those distinctions have
an effect and impact upon terms and conditions of employment,
and that therefore, in-plant cafeteria and vending machine food
prices and services, are mandatory subjects of bargaining under
the facts and circumstances of this case.
This result will not be unduly burdensome to the Company.
The obligation to bargain upon terms and conditions of employ-
ment “does not compel either party to agree to a proposal or
require the making of a concession.” 29 U. S. C. § 158(d). The
order we are enforcing does not require the Company to bargain
about every proposed price change in food prices before putting
such change into effect but “to bargain on such price change
only after . . . [it is) determined unilaterally and upon a request
of the Union.”
The Board’s order of July 11, 1977, is enforced and the
Company’s petition for review as denied.
Al18
APPENDIX B
230 NLRB No. 101
FPM
D—2635
Chicago Heights, III.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ForD Motor CoMPANY
(Chicago Stamping Plant)
. |
Case 13—CA—15340
LocaL 588, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMER-
ICA ,
DECISION AND ORDER
On December 1, 1976, Administrative Law Judge Ralph
Winkler issued the attached Decision in this proceeding. There-
after, the General Counsel and the Charging Party filed excep-
tions and supporting brief and the Respondent filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, as amended, the National Labor Relations
Board has delegated its authority in this proceeding to a three-
member panel.
The Board has considered the record and the attached De-
cision in light of the exceptions and briefs and has decided to
Al9
affirm the rulings, findings,’ and conclusions of the Adminis-
trative Law Judge only to the extent consistent herewith.
The complaint alleges that Respondent Ford Motor Company
(hereinafter called Respondent), at its Chicago Stamping Plant,
refused to bargain and supply information to Local 588, United
Automobile, Aerospace and Agricultural Implement Workers of
America (hereinafter called Union), in regard to the plant's
vending machine and cafeteria prices and services. The Ad-
ministrative Law Judge found that, on the basis of the Board's
decisions, in-plant food prices are a mandatory subject of bar-
gaining. However, he nevertheless found that the Board’s action
in failing to seek review of the Seventh Circuit's reversal of
Ladish,’ to the latest Board decision in this area, considered in
light of other reviewing courts’ refusal to uphold Board decisions
in this area (see infra), was a decision to hold that in-plant food
prices are not a mandatory subject of bargaining.’ Accordingly,
he concluded that the Respondent did not violate Section 8(a)
(5) and (1) by refusing to bargain about such prices and by
not supplying the requested information in connection there-
with. We disagree on all counts.
The facts are not in dispute and may be summarized as
follows: The Respondent provides its employees with two air-
conditioned cafeterias and five air-conditioned vending areas (or
coke cribs). The cafeteria and vending areas are serviced by
ARA Services pursuant to a 1972 agreement with the Respond-
ent. Under the agreement, ARA furnishes food and machines.
Section 2(d) of the contract states that ARA shall:
furnish products of quality in accordance with purchasing
specifications that shall have been submitted to and ap-
proved by Ford, and in accordance with a price and postion
1. The General Counsel has made a motion to correct the tran-
script and states that all — agree to the corrections. In the
absence of any opposition thereto, the motion is hereby granted.
2. 219 NLRB 354 (1975), enforcement denied 538 F. 2d 1267
(C. A. 7, 1976).
3. The Administrative Law Judge did not discuss the allegations
that Respondent refused to bargain as to services.
A20
list for said manual food service and vending machines
that shall have been submitted to Ford and that shall be
subject to review at the request of Ford or Contractor.
Section 3(a) of the agreement provides that ARA be reim-
bursed for all direct costs of the food and vending operations
along with a surcharge consisting of an allowance for general
administrative costs equivalent to 4 perceat of net receipts
and a service fee of 5 percent of net receipts. Should the receipts
exceed cost plus the 9 percent surcharge, the excess funds shall
be returned to the Respondent. When revenues do not exceed
the costs of the operation plus the service fee, the Respondent
is obligated to subsidize ARA, and in recent years, at times, has
had to do so. The agreement further states that the contract is
terminable by either party upon 60 days’ notice.
Although Respondent has at all times refused to bargain as
to the prices set by ARA with its approval, it has in the past
bargained over the quality of services provided by that caterer.
Since 1967, the local contract has included provisions dealing
with vending and cafeteria services. The contracts have covered
the staffing of service lines, adequate cafeteria supervision, re-
stocking and repairing vending machines, and menu variety.
The 1974 local agreement also states, “The Company recog-
nized its continuing responsibility for the satisfactory perform-
ance of the caterer and for the expeditious handling of com-
plaints concerned with such performance.”
Employees have a 30-minute lunch period and two 22-minute
rest periods. They are not allowed to leave the plant during
the 22-minute breads, and it is not feasible for them to leave
during the lunch period. Mobile food vending trucks are not
permitted on plant property and are not usually available outside
the plant gate. Only an extremely small number of employees
(approximately 12 of the 3,600) actually leave the plant during
the lunch period.
Employees are permitted to bring their own food into the
plant. However, the food must be stored in personal lockers.
A21
These lockers are located in rooms which are ventilated but not
air-conditioned. There are no refrigeration facilities. During the
summer months, the rooms become very hot (temperatures
reaching between 80 to 100 degrees) and sticky, and employees
have complained about food spoilage. The Respondent has had
occasion to use exterminator services upon complaints as to
santiary conditions in the locker room.
On February 6, 1976, the Respondent informed the Union
that cafeteria and vending machine prices would be increased
by an unspecified ainount on February 9. The Respondent
refused the Union’s request to discuss the increase first, and on
February 9 the prices were increased from 5 to 10 cents an
item. On February 13, the Union sent the following letter to
the Respondent's industrial relations manager, Brown, asking to
bargain about prices and services:
Dear Mr. Brown:
As the certified Bargaining Agent for i
your Production
and Maintenance Employees, Local 588 is concerned
a — eo grag in cafeteria and vending opera-
ms. We wou e to bargain with yo i
iamaaaamiion g you regarding these
As you know this is a subject of great concern. Good
food at reasonable prices is considered to be a condition
of employment by our members. If we discuss this properly,
we may be able to reach full agreement prior to opening
negotiations for a new contract.
Sincerely,
RICHARD W. Marco
The Respondent responded to the letter on February 18:
Dear Mr. Marco,
This letter is in response to your letter dated February
} > ayy ee to meet with the Company for the
rpose negotiating prices and services provided
A.R.A. food service. a 7
Similar requests have been made by the Union in the
past, and that Company's response has been the same, that
A22
food prices and services are not a proper subject for nego-
tiations. Appropziately, your request is denied.
T. M. BROWN
In the meantime, the Union, on February 16, 1976, began a
boycott of the food services operations and over half of the
employees participated. The boycott lasted over a month, but
did not result in any changes in the prices. On March 23, 1976,
the Union requested information concerning the Respondent's
role in cafeteria and vending operations in order to administer
the existing contract and to prepare for upcoming negotiations.
The Respondent declined.
The Administrative Law Judge correctly found—and the
Respondent concedes in its brief—that the present case falls
within the factual and legal context of the Board’s decisions in
Westinghouse Electric Corporation, McCall Corporation Pack-
age Machinery Company,® and Ladish,’ and that on the basis of
these decisions in-plant food prices are a mandatory subject of
bargaining. Had he followed the principles established in such
cases, therefore, he necessarily would have found, as we do,
that Respondent violated 8(a)(5) and (1) when it refused to
bargain about such matters. However, as previously indicated,
the Administrative Law Judge, relying on the First,* Fourth,”
and Seventh,” Circuits’ reversal of the Board’s finding of a
violation in the above-mentioned cases, coupled with the
Board's failure to seek certiorari in Ladish, erroneously found
that the Board has since decided that in-plant food prices are
4. 156 NLRB 1080 (1966).
5. 172 NLRB 540 (1968).
6. 191 NLRB 268 (1971).
7. 219 NLRB 354 (1975).
8. Packaze Machinery Company v. N. L. R. B., 457 F. 2d 936
(C. A. 1, 1972).
9. Westinghouse Electric Corporation v. N. L. R. B., 387 F. 2d
542 (C. A. 4, 1967); McCall Corporation v. N. L. R. B., 432 F. 2d
187 (C. A. 4, 1970).
10. N.L.R.B. Vv. Ladish Co., 538 F. 2d 1267 (C. A. 7, 1976).
A23
not a mandatory subject of bargaining and hence there was no
violation in Respondent's refusal to bargain about them.
With all due respect to the First, Fourth, and Seventh Cir-
cults, we adhere to our position that cafeteria and vending
machine prices are a mandatory subject of bargaining." Nor
does the Board’s failure to seck certiorari in those cases indicate
an abandonment of its position that in-plant food prices are a
mandatory subject of bargaining, and any assumptions to the
contrary are totally unfounded and unwarranted.’* Accordingly,
11. We note that the instant case, on its facts, is in man
a stronger case than Ladish for adhering to our position. Unlike
Ladish, where the respondent had no input on prices, the Respondent
in this case retains influence over cafeteria and vending machine
prices by its right to review prices and its leverage of the subsidy
agreement. In addition, there also exists the possibility for the
Respondent to make a profit on the food service operation. Also,
since 1967, the parties in this case have bargained over in-plant food
services. No such bargaining history was present in Ladish. More-
over, in Ladish, the court implied that “brown-bagging” is a viable
alternative to purchasing lunch from the commercial food service.
ee oom. in this case, employees have complained about spoilage of
ood stored in their lockers until lunch, as well as unsanitary condi-
tions in the locker room (wherein the Respondent has found it
emmys on occasion to exterminate). Additionally, the employees
ave ay been so concerned with the food pricing that over
half o them participated in a boycott of the Respondent’s food
— operations. There was no such labor strife involved in Ladish.
— y, in Ladish the employees were represented by seven unions.
Ne court therein projected that each time the food prices were
= the Company could be compelled to engage in seven rounds
of negouations.” 538 F. 2d at 1272. This fact, the court declared,
= a good example of a situation in which bargaining could
both disruptive of stable relations and economically wasteful.”
Id. In the instant case, however, the emplovees are represented bv a
single union. While we adhere to the view that the number of unions
Po rma employees at a single plant is not a factor in resolving
this issue, we nevertheless note that, even in the court’s view, there
1s no potential for conflicting union demands in this case.
12. By relying on U. S. Court of Appeals’ decisions which
. are
—— to applicable Board precedent, the Administrative Law
ge in this case has committed an error. It is not for an Adminis-
trative Law Judge to speculate as to what course the Board shou!d or
— follow where a circuit court has expressed disagreement with
the Board’s views. That is the province of the Beard alone. It
(Footnote continued on next page.)
A24
we find that Respondent has violated Section 8 (a) (5) and (1)
of the Act by refusing to bargain about the price increases it
placed inio effect.
We further find that Respondent violated the same sections of
the Act by also refusing to bargain about the food services pro-
vided by it through a contract with ARA. The Respondent
acknowledge that certain aspects of food services are mandatory
subjects of bargaining and that the 1974 contract between itself
and the Union contained provisions concerning food services,”
Respondent, however, argues that it has not refused to bargain
about the food services provided here. We find no basis in the
record to support that argument. To the contrary, the Respond-
ent in its denial of the Union's request to bargain about the food
prices and services, supra, stated, ‘food prices and services are
not a proper subject for negotiations.” We cannot imagine a
more explicit refusal to bargain. Nor is there any evidence that
bargaining about such service occurred, or that Respondent,
its stated refusal to the contrary, stood ready or attempted to
bargain about food services. Accordingly, we find that Respond-
ent refused to bargain about the food services provided its
employees.
The Union also requested information about the Respondent’s
role in the cafeteria and vending machine operations in order
to police the existing contract and to prepare for bargaining.
(Footnote continued from preceding page.)
remains the Administrative Law Judge’s duty to apply established
Board precedent which the Supreme Court or the Board has not
reversed. lowa Beef Packers, Inc., 144 NLRB 615, 616 (1963);
Novak Logging Company, 119 NLRB 1573, 1575-76 (1958); The
Prudential Insurance Company of America, 119 NLRB 768, 773
(1957).
13. The Board and the courts have found a wide variety of- *
subjects to be material conditions of employment falling within the
scope of compulsory bargaining. Among such conditions are in-plant
feeding, Inland Steel Company V. N. L. R. B., 170 F. 2d 247 (C. A.
7, 1948); improvements in lunchroom equipment and supplies,
Preston Products Company, Inc., 158 NLRB 452 (1966); the
scheduling of coffeebreaks, and providing the service of free coffee,
Fleming Manufacturing Company, 119 NLRB 452 (1967).
A25
po Anse “pons that food prices and services are mandatory
.” . ) bargaining. The requested information is clearly
_ ea to those subjects and hence is necessary to the Union’s
ing its duty as a bargaining agent also to those matters."
The Remedy
Z pwnd ae that the Respondent has unlawfully refused
ch: 8 supply information to the Union concerning
prices and services, we shall order that it cease and desist
therefrom and take certain affirmative action to effectuate th
panes of the Act. As we held in Westinghouse Electric Cor ‘
supra, ‘It is sufficient compliance with the statutory iahaiies
ve if management honors a specific union request for bargai
ing about changes made or to be made.” 156 NLRB at 1081.
Accordingly, as in Westinghouse, our order will not require th .
Respondent “to bargain about every proposed price change i
food prices before putting such change in effect.” we wil re
quire the Respondent to bargain on such price change are
after they are determi :
rs Mond ermined unilaterally and upon a request of
Conclusions of Law
1. Respondent is an em i
ployer engaged in commerce withi
the meaning of Section 2(6) and (17) of the Act. dpi
2. The Union is a labor organizati ithi
: ganization within th i
of Section 2(5) of the Act. yhanareiines
Z 3. At all times material herein, the Union has been and is
e exclusive representative of all employees in the following
unit within the meaning of Section 9(a) of the Act:
All production and maintenance employees in the R
ent’s facility at Chicago Heights, ‘llinois, but jer 0
ee office employees and clerical employees other than
-s ipping and receiving clerks, employees in the Industrial
elations and methods and work standards department,
14. N.L. R. B. y. Acme Industrial Co., 385 U. S. 432 (1967).
A26
employees engaged in designing, drafting, ——s yen
tographic and other technical, experimental and/o Pa
search work, cafeteria and dining room = pie .
protection and fire department employees, guards, pro -. :
sional employees, foremen, trainee foremen and all othe
i in the Act, constitute a unit appro-
gy saga noir saan bargaining within the
meaning of Section 9(b) of the Act. |
4. By refusing, on and since February 18, 1976, to bargain
collectively with the Union as the exclusive representative - its
employees in the afore-said bargaining unit, concerning plant
vending machine and cafeteria services and Price ae
Respondent has engaged in and is engaging in unfair la
practices within the meaning of Section 8(a)(1) and (5) o
the Act. |
5. By refusing, on and since February 18, 1976, to bargain
and to supply the information requested by ithe Union concern-
ing the Respondent's role in the cafeteria and vending mactns
operation, which information is necessary for the Union’s per-
formance of its duty as exclusive bargaining agent, the Respond-
ent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board hereby
orders that the Respondent, Ford Motor Company, Chicago
Heights, Illinois, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing, upon request, to bargain collectively with Local
588, United Automobile, Aerospace and Agricultural Imple-
A27
ment Workers of America, as the exclusive bargaining repre-
sentative of its employees in the following appropriate unit with
respect to food services and changes in food prices in the vend-
ing machines and cafeteria:
All production and maintenance employees in the
Respondent's facility at Chicago Heights, Illinois, but
excluding general office employees and clerical employees
other than shipping and receiving clerks, employees in the
Industrial Relations and methods and work standards de-
partment, employees engaged in designing, drafting, labora-
tory, photographic and other technical, experimental
and/or research work, cafeteria and dining room em-
ployees, plant protection and fire department employees,
guards, professional employees, foremen, trainee foremen
and all other supervisors as defined in the Act, constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
(b) Refusing, upon request, to supply the aforesaid labor
organization with the information necessary for collective bar-
gaining, in relation to its role in the cafeteria and vending
machine operation.
(c) In any like or related manner interfering with, restrain-
ing, Or coercing employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
Organization as the exclusive representative of all employees in
the aforesaid appropriate unit with respect to food services and
any changes, now in effect or hereafter made or proposed, in
food prices charged employees in the vending machines and
cafeterias.
(b) Upon request, supply the above-named labor organiza-
tion with information necessary for collective-bargaining, in
relation to its part or role in the cafeteria and vending machine
operations. |
A28
(c) Post at its plant in Chicago Heights, Illinois, copies of
the attached notice marked “Appendix.”*® Copies of said notice,
on forms provided by the Regional Director for Region 13, after
being duly signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt thereof, and
be maintained by ‘t for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 13, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Dated, Washington, D. C. July 11, 1977.
JOHN H. FANNING,
Chairman
JoHN A. PENELLO,
Member
BETTY SOUTHARD MURPHY,
Member
NATIONAL LABOR RELATIONS BOARD
(SEAL )
15. In the event that this ge —_— y | a — e -
jnit tates Court of Appeals, the words in the notice rea
“POSTED BY ORDER OF THE NATIONAL LABOR RELA-
TIONS BOARD” shall read “POSTED PURSUANT TO A JUDG-
MENT OF THE UNITED STATES COURT OF APPEALS
ENF .CING AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD.”
A29
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with Local
588, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, as the exclusive representative of all
our employees in the bargaining unit described below with
respect to food services and changes in food prices in the vend-
ing machines and cafeterias:
All production and maintenance employees in the
Respondent's facility at Chicago Heights, Illinois, but
excluding general office employees and clerical employees
other than shipping and receiving clerks, employees in the
Industrial Relations and methods and work standards de-
partment, employees engaged in designing, drafting, labora-
tory, photographic and other technical, experimental,
and/or research work, cafeteria and dining room em-
ployees, plant protection and fire department employees,
guards, professional employees, foremen, trainee foremen
and all other supervisors as defined in the Act.
WE WILL NOT refuse to supply the above-named Union
with information necessary for collective bargaining, in relation
to its role in the cafeteria and vending machine operation.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain collectively with the above-
named Union, as the exclusive representative of all our em-
ployees in the aforesaid unit with respect to food services and
any changes, now in effect or hereafter made or proposed, in
A30
food prices charged our employees in the vending machines
and cafeterias.
WE WILL, upon request, supply the above-named Union
with information necessary for collective bargaining in relation
to its role in the cafeteria and vending machine operation.
Forp Motor COMPANY
(Employer)
a ee Sipniabiliateissdentiates
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from
the date of posting and must not be altered, defaced, or covered
by any other material. Any questions coacerning this notice or
compliance with its provisions may be directed to the Board’s
Office, Everett McKinley Dirksen Bldg., Rm. 881, 219 S.
Dearborn Street, Chicago, Illinois 60604, Telephone 312—
353—7597.
/
/
A31
JD-793-76
Chicago Heights, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ForD Motor COMPANY (CHICAGO )
STAMPING PLANT)
and
LocaL 588, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IM-
PLEMENT WORKERS OF AMERICA . Case No.
Lawrence E. Dube, Esq., and Frank 13-CA-15340
J. Ziegler, Esq., for the Generai
Counsel.
William J. Rooney, Esq., Dearborn,
MI, for Respondent.
Jerome Schur (Katz & Friedman),
Chicago, IL, for the Union.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: This case was
heard on August 16, 1976, in Chicago, Illinois, upon a com-
plaint issued by the General Counsel on May 16, 1976, and an
answer filed by Respondent Ford Motor Company. Interna-
tional Union, United Automobile, Aerospace and Agricultural
Implement Workers of America intervened after the hearing,
and I shall refer to it and its Local 588 collectively as the Union
unless separate identification be necessary. The Company is an
employer within Section 2(6) and (7) of the Act, and the
International and Local 588 are labor organizations within
Section 2(5) of the Act.
A32
I. The Unfair Labor Practices
The issue
Respondent has a Stamping Plant in Chicago Heights, Mlinois.
The plant buildings occupy an area one-quarter mile by one-
quarter mile and employ approximately 3,600 hourly-rated
production employees on a three-shift operation. These em-
ployees are represented by the International Union, with Local
588 as its administrative component, and there is no other
union in the plant. Collective-bargaining agreements have been
operative between the parties at all material times here.
The principal issue is whether Respondent violated Section
8(a)(1) and (5) of the Act by refusing to bargain with the
Union concerning cafeteria and vending machine prices at the
Stamping Plant. Conceding this refusal to bargain, Respondent
asserts that cafeteria and vending machine prices are not “terms
and conditions of employment” within Section 8(d) of the Act
and, therefore, that it was under no obligation to negotiate over
that subject. Whether such prices are a mandatory subject of
bargaining under the Act is not a novel question. As will be dis-
cussed, Board decisions uniformly have held that it is mandatory,
while those Courts of Appeals dealing with the problem have just
as uniformly held otherwise.
Cafeteria and vending machine facilities
Respondent makes available to its employees certain in-plant
cafeteria and vending machine services which are provided by
ARA Services, Inc., pursuant to a 1972 “caterer-vending” agree-
ment between Respondent and ARA.' This agreement provides,
in part, that ARA will manage and operate the manual food
service at the plant and install, maintain, and service the vending
machines; provide all food, beverages, and materials for the
1. ARA has been providing such services since 1970. Another
caterer provided similar services before that time.
A33
operation along with necessary management and labor personnel;
furnish products of quality in accordance with specifications ap-
proved by Respondent and in accordance with a price and por-
tion list that shall also have been submitted to Respondent and
that shall be subject to review at either party’s request; permit
Respondent to inspect all machines and equipment to determine
compliance with established standards of quality and cleanliness.
The agreement provides that ARA be reimbursed for all direct
costs of food and vending operations along with an allowance for
general administrative costs equivalent to 4 percent of net re-
ceipts and a service fee of 5 percent of such receipts. If gross
receipts from the operation are less than the sum of the costs of
the operation plus the service fee, Respondent is obligated to
reimburse ARA for the deficit by an annual amount not to exceed
$52,000. The parties stipulated in this connection that
In some months revenues exceed costs and in some months
the opposite has occurred. When revenues exceed costs, the
Employer realizes income, and when costs exceed revenues
a loss occurs. For all recent years, the operation has been
on a loss basis and the Employer has made up the loss to
ARA.
The agreement further provides that ARA is an independent con-
tractor and that the contract is terminable by either party upon
60 days’ notice.
ARA maintains two cafeterias and five vending machine areas
(or coke cribs) in the plant for bargaining unit employees.* The
larger (or “hourly”) cafeteria, on the second floor of the plant,
serves hot food from steam tables and also houses coin-operated
vending machines which dispense beverages, hot and cold food,
pastry, and candy. This cafeteria is air-conditioned and seats
between 400 and 500 persons. It is open for breakfast between
5 a.m. and 8 a.m., and also during lunch periods. It is open dur-
ing shift changes, as well, but only food from the vending ma-
chines is available at those times.
2. ARA also maintains an Exccutive dining room and a salaried
cafeteria which are not available to bargaining unit employees.
A34
The second (or “satellite”) cafeteria also is air-conditioned,
it accommodates 50 to 100 persons and is open for two of the
three lunch periods on thé day and evening shifts. This cafeteria
does not have a steam table or cafeteria service; it does have ap-
proximately 12 vending machines serving hot and cold sand-
wiches, beverages, stews, soups, spaghetti, pastry, icc cream,
and candy.
The five coke cribs, which are air-conditioned and enclosed,
are scattered throughout the plant and are open during all meal
and rest periods. Each of four cribs accommodates 40 to 50
persons, and the fifth between 75 and 100. The cribs have vend-
ing machines dispensing the same food items available in the
satellite cafeteria.
Employees on all three shifts have a 30-minute lunch period.
In addition, employees working on production lines—approxi-
mately 1,600, or approximately 50 percent of the employees on
the first two shifts— have a 5-minute washup period before their
lunch break and two 22-minute rest periods.
The following table* is a representative showing of patronage
of cafeteria and vending machine services during the indicated
weeks:
Customer J. Total Vending
Ceunt in all Hourly Plant Sales
Week Cafeterias Cafeteria Population Unit
1. 10/12/75 through
SG/EC/TS cccccess 6.745 5,600 4,445 96,279
2. 11/15/75 through
BEJZE/TS covccecs 3,938 3,865 3,755 61,568
3. 1/10/76 through
y's) SPPrerrry 3,947 3,873 3,750 70,560
4. 2/28/76 through
e's. BPrrrrere 875 820 3,950 16,741
3. ~ Page 29 of the transcript is hereby corrected to conform with
the statistical data in the table. The record is also corrected to reflect
the changes indicated at page 5, note 5, of the General Counsel’s
brief.
A35
In the vicinity of Chicago Heights and within several miles
from Respondent's plant, are more than a dozen other industrial
plants employing several thousand employees. There are five
short-order eating places and five sit-down restaurants within 3
miles of the plant, and some 25 establishments within 4 miles.
Respondent agrees that it is not feasible, presumably because of
time limitations,‘ for employees to leave the plant during their
22-minute rest breaks, and, as indicated above, their lunch
period is only 8 minutes longer. Mobile food vending trucks are
not permitted on plant property, and are not usually available
outside the plant gate. Comparatively few employees actually
leave the plant during lunch periods.
Employees are permitted to bring their own food into the
plant which they may store only in their personal lockers and
not in working areas. Food may only be eaten in the cafeterias
or in break areas or coke cribs. The locker rooms are ventilated
but not air-conditioned and employees have no facilities for re-
frigerating food they bring in. According to Local 588’s presi-
dent, Richard Marco, the locker rooms are not well ventilated
and become “very hot and sticky and smelly” in summer months
when area temperatures frequently range between 80 and 100
degrees and go even higher. Marco further testified to having
received employee complaints concerning food spoilage resulting
from locker room conditions.’ And Respondent has had occasion
to use exterminator services upon complaints from employees
as to sanitary conditions in the locker room.
Respondent-Union relationship as to
in-plant food services
Respondent and International UAW have had a series of col-
lective-bargaining agreements covering plant employees since
, 4. Moreover, employees may noi leave the plant without permis-
sion during their 22-minute breaks.
5. Marco while testifying on August 16, 1976, said that he
received the last such complaint in May 1976.
A36
approximately 1956 when the International was certified as their
statutory bargaining repres-atative. These have actually been
national agreements, and the national contract at material times
here was effective from Nevember 1973 until September 1976.
Pursuant to practice, Local 588 and Respondent have also nego-
tiated a series of local agreements concerning local issues, and
the last such agreement ran from June 1974 until September
1976.
Neither the 1973 International Agreement nor the 1974 Local
Agreement contains any provision regarding cafeteria or vending
machine prices. (During negotiations for the 1974 Local Agree-
ment, Respondent had rejected Local 588’s request that it bar-
gain about in-plant food prices.) Respondent has meanwhile
recognized “its continuing responsibility for the satisfactory per-
formance of the caterer and for providing the Union with a means
for registering and expeditious handling of complaints concerned
with such performance.” This “recognition” appears as the last
paragraph in the following letter of understanding, dated Octo-
ber 29, 1967, from Respondent to Local 588, this letter being
included in the parties’ 1970 Local Agreement (Jnt. Exh. 8, pp.
5-6): .
Improved Vending and Cafeteria Service
This is to advise that in accordance with our discussion
during 1967 local negotiations, a meeting was held between
representatives of the Company and Al Green Enterprises,
Inc. for the purpose of improving cafeteria and vending
services. .
It was agreed there will be a reassignment of serving and
kitchen duties to ensure additional personnel for the serving
of steam table items at all times during regular lunch
periods. .
Additionally, assurance was given that the Cafeteria
Manager or an Assistant Manager, during all lunch periods,
will be stationed in the cafeteria to ensure the adequacy of
food, service, condiments, silverware and utensils.
Silverware will be subjected to continuing additional in-
spection after washing, and in the event of a temporary
A37
shortage of personnel due to absenteeism, etc., a standby
supply of clean silverware will be available to ensure an
adequate supply during all feeding periods.
To provide condiments for sandwiches dispensed in the
“Coke Cribs,” dispensers of mustard and catsup will be
installed.
It was further agreed that Al Green Enterprises, Inc. will
without undue delay following the strike provide a qualified
expert from its home office to study local conditions for the
purpose of providing attractive “weekly specials,” more
varied menus and to devise means for improving cashier
service.
Additionally, a vending service specialist will study the
plant’s vending requirements and facilities, including the
added milk, pastry and ice cream machines for the purpose
of recommending an improved servicing schedule and any
additional manpower necessary to implement such sched-
ules. Each vending crib will be serviced at least once a shift.
To ensure that vending machines will be given prompt
servicing in the event of mechanical breakdown, an instant
means of communication with the mechanic will be pro-
vided.
The Local Agreement of 1970 also contains two other com-
munications from Respondent to Local 588. The first, dated
November 15, 1964, reads (Int. Exh. 8, p. 40):
Supplemental Eating Facilities
This is to advise that in accordance with our discussions
during 1974 local negotiations, the Company intends to
install a permanent type eating facility equipped with vend-
ing machines in the new addition to serve those employees
working in the new addition and the shipping dock.
And the second, dated December 11, 1970, states (Jnt. Exh. 8,
p. 7):
Shipping Dock Cafeteria Hours
Following the conclusion of 1970 local negotiations, the
Company will arrange for the Shipping Dock Cafeteria to
be open on all shifts, at the same times that the main cafe-
teria is open.
A38
The 1974 Local Agreement contains a letter of understanding
from Respondent to Local 588, stating in relevant part that “as
discussed in 1973 local negotiations,” “The five (5) employee
break areas [which I presume are the aforementioned “coke
cribs”] will be enclosed and air-conditioned with an adequate
number of window type air-conditioning units” (Jnt. Exh. 7,
p. 2). In their Local Agreement of 1974 the parties also agreed
as follows, concerning “Vending and Cafeteria Service” Jnt.
Exh. 7, p. 5):
1. CAFETERIA SERVICE
The Company assures the Union that steam table items
will be available at all times during the regular lunch
period and that a comparable selection of entrees,
salads and desserts will be available during all regular
lunch periods. In addition, the Company will make
arrangements for a delicatessen type sandwich service in
the cafeteria. Cafeteria supervision will be available
during all lunch periods to ensure that employees will
be served in a reasonable length of time through the
main serving lines as well as to provide for the ade-
quacy of food service, condiments and utensils.
2. VENDING SERVICE AND VARIETY
To assure that vending machines will receive prompt
servicing in the event of a mechanical breakdown, a
sticker will be affixed to each machine indicating the
number to call for repair. Further, the Company assures
the Union that a greater variety of selections will be
maintained in the existing vending machines and that
the quality of such items will continue to meet Com-
pany standards.
The Company recognizes its continuing responsibility for
the satisfactory performance of the caterer and for the ex-
peditious handling of complaints concerned with such per-
formance.
The 1970 and 1974 Local Agreements also show that the parties
have discussed and that Respondent has agreed on various items
of plant maintenance, including the inspection and improvement
A39
of ventilation systems affecting, among others, the plant locker
room (Jnt. Exh. 7, pp. 3-4; Jnt. Exh. 8, p. 4).
The current dispute
On or about February 6, 1976, Respondent informed Local
588 that ARA would be increasing the prices of certain cafe-
teria and vending items, effective February 9, 1976. Local 588
had not been previously advised of the increases, and Respondent
did not furnish specific information on February 6 about the
amount of the increases. Local 588 requested at the time that
the increases be postponed until Local 588 could discuss the
matter with Respondent, but Respondent refused. The increases
went into effect on February 9; most affected items were raised
5 cents and some were raised 10 cents. By letter dated February
13, 1976, Local 588 asked Respondent to bargain concerning
“prices and services in cafeteria and vending operations,” and
Respondent again declined on February i9 for the stated reason
that “food prices and services are not a proper subject for
negotiations.”
By letter to Respondent on March 23, 1976, Local 588
requested certain information concerning Respondent’s role in
cafeteria and vending operations in order, the letter stated, to
administer existing collective-bargaining provisions (the June
20, 1974, agreement set forth above) and to prepare for up-
coming negotiations in September 1976 when, by their terms,
the national and local agreements between Respondent and the
Union would expire. Local 588 thus sought, among other things,
information as to Respondent’s maintenance responsibilities,
Respondent's profits from the food operations, Respondent's
control of prices, and Respondent's contractual arrangement
with any food supplier. On April 9, 1976, Respondent turned
down Local 588’s request for information and again refused,
and it has continued to refuse, to bargain about cafeteria and
vending prices.
A40
Meanwhile, on February 16, 1976, Local 588 began a boy-
cott of the food services operations. “Substantially in excess of
half of the members of Local 588” observed the boycott, accord-
ing to the parties’ stipulation, and most of these observing
employees brought in their lunches during the period. Local
President Marco testified that a few employees left the plant to
eat and that some employees did not eat at all. The boycott did
not cause any price reductions, with the possible exception that
some special dishes were made available. The cafeteria boycott
was ended by Local 588’s Shop Committee on May 19, 1976,
and the boycott of vending machines was terminated on June 7,
1976. Contributing to this decision to call off the boycott,
according to President Marco, was the onset of hot weather with
consequent problems of spoilage of food the employees brought
into the plant. It may be fairly said, however, and I find that a
substantial reason for abandoning the boycott was its ineffec-
tiveness in reducing prices.
In July 1976, the International notified Respondent of its
desire to terminate their current national contract and all local
agreements. While not in this record, the news media report that
Respondent and the International have concluded negotiations
for a new contract. However, no party has requested that the
results of these latest negotiations be made part of this record,
and nothing further need be said in that regard.
Does the Act require Respondent to bargain
concerning the prices of in-plant food?
Board and Court Decisions
By a divided vote (3-2) in Westinghouse Electric Corp., 156
NLRB 1080 (1966), the Board held that an employer in an
urban industrial setting is required under the Act to bargain
with a statutory representative of its plant employees concerning
food prices charged in on-site cafeterias. The in-plant cafeteria
facilities were overated by a catering service pursuant to contract
A4l
with Westinghouse; under the contract, the caterer paid West-
inghouse a rental of $1.00 a year and Westinghouse provided
the capital equipment necessary for operating the facilities. The
catering contract also provided, among other things, that the
“quantity and prices of the meals served, and the hours of
service thereof . . . shall at all times be reasonable” and it also
gave Westinghouse a right to conduct periodic audits of the
cafeteria accounts. The caterer announced an increase in the
price of a food item and the union involved sought to meet and
discuss the matter with Westinghouse. Westinghouse refused the
union’s request, and the Board concluded in finding a violation
of Section 8(a) (5) that it is “within the objective and meaning
of the Act to require parties to submit such controversies to the
healing processes of collective bargaining” (156 NLRB at
1082).
On review of the Westinghouse case, a divided Court of
Appeals, sitting en banc, reversed the Board and held that the
in-plant food prices were not a mandatory subject of bargaining.
Westinghouse Electric Corporation v. N. L. R. B., 387 F. 2d
542 (C. A. 4, 1967). The Court stated in part that “The case
before us does not even remotely involve any question of job
security or any other issue which employees could traditionally
consider vital. Nor is there any evidence that the inclusion of this
issue here within the collective bargaining framework is a wide-
spread industrial practice” (387 F. 2d at 548, emphasis added).°
In McCall Corporation, 172 NLRB 540 (1968), employees
were able to purchase food “in a company-owned and -operated
cafeteria” and “out of vending machines owned by a contractor
but supplied with company cafeteria-prepared and -priced food”
(172 NLRB at 541). There were some 16 unions in the plant,
and McCall refused to negotiate with one of them concerning
food prices. Citing its Westinghouse case, supra, and an earlier
Weyerhaeuser case (87 NLRB 672) involving a sawmill and
lumber camp setting, a Board panel concluded that food prices
6. Nor was such evidence offered in the present case.
A42
“constitute ‘conditions of employment’ and bargainable matters”
and that McCall violated Section 8(a)(5) by refusing to bar-
gain over such prices. By divided vote on review, the Fourth
Circuit found that “the difference between the indirect control
exercised in Westinghouse and the direct control in McCall over
the quality and prices of food is not of sufficient significance to
affect the result.” McCall Corporation v. N. L. R. B., 432 F. 2d
187, 188 (1970). The Court rejected the Board’s request that
the Court overrule its Westinghouse ruling and it set aside the
Board’s McCall decision.
The next in this series of cases cited by the parties is Package
Machinery Company, 191 NLRB 268 (1971), reversed 457
F. 2d 936 (C. A. 1, 1972). The company in this case had a
contract with a caterer to operate in-plant cafeteria and vending
machine services, and under their arrangement the company
paid a specific monthly subsidy to the caterer. The union
involved requested that the company furnish it a copy of the
company’s contract with the caterer and that the company
bargain with it concerning food and beverage prices. The com-
pany refused, and a Board panel found a violation of Section
8(a)(5) upon the basis of its Westinghouse and McCall deci-
sions. Referring to the aforementioned Court decision in West-
inghouse, the First Circuit set aside the Board’s Package
Machinery order and observed, inter alia, that “If food costs go
up from time to time, as inevitably they seem to, it would appear
more appropriate to bargain over wages... .” (457 F. 2d at
938).’
Finally we come to Ladish Co., 219 NLRB 354 (1975),
where, as the General Counsel mentions, the Board undertook a
“thorough examination” of the issue presented here (G. C. Br.,
p. 15). The employer in that case made hot and cold food
available to its employees through contracts with vending
machine companies (caterers). The caterers determined the
7. The 1973 contract between Respondent and the Union
included wage increases as well as a cost-of-living allowance geared
to the Combined Consumer Price Index (Jnt. Exh. 4, pp. 96-97).
A43
prices of food items and the employer received from the caterer
a commission on food sales to cover the use of floor space,
overhead, and operational costs. Employees received a 15-
minute paid lunch period and were not permitted to leave the
plant for lunch. About 70 percent of the employees purchased
their lunches from vending machines, 90 percent obtain
beverages from the machines, and the other employees bring
their lunches. One of several involved unions filed a grievance
protesting an increase in all food items, and the employer’s
response was to refuse to negotiate. In a full-dress discussion of
the issue, as indicated above, a Board panel (with one dissent
and one concurrence) concluded that in-plant food prices
“constitute ‘conditions of employment’ and bargainable matters”
(219 NLRB at 358), and it directed the employer to bargain
concerning those matters.
The Board brought enforcement proceedings before the
Seventh Circuit in the Ladish case. Denying enforcement and in
effect joining the First and Fourth Circuits, the Court held that
“vending machine food prices are not a material or significant
condition of employment at Ladish, The impact of these prices
is toO remote to require bargaining.” N. L. R. B. v. Ladish Co.,
538 F. 2d 1267, 1272 (C. A. 7, 1976).
The Board did not file a petition for certiorari in Ladish.
Discussion
The facts of the present case fall within the factual-legal
contexts of the Westinghouse, McCall, Package Machinery, and
Ladish cases, It is unnecessary, in my opinion, to have discussed
these cases in greater detail for it is beyond question that in-
plant food prices are a mandatory subject of bargaining on the
basis of the mentioned Board decisions. It seems equally clear
that such prices are not a required subject of bargaining if the
mentioned court decisions be controlling. The present case is
therefore not one that requires in-depth analyses of the cases
and of underlying theory.
A44
Administrative Law Judges are bound by Board decisional
law, needless to say, despite reversals on the same point of law
by Courts of Appeals. The question I have, however, is what
interpretation to accord the Board’s determination not to seek
certiorari in the Ladish case. Complicating the problem is the
fact that such determination might have been influenced by the
lack of a conflict between the Circuits and the Board’s aware-
ness of the difficulty of obtaining Supreme Court review without
a conflict. In other words, it is possible that the Board may still
be desirous of testing the issue in other Courts of Appeals before
giving up on the issue or before seeking certiorari without a
conflict.
With less certainty than I would like, I nonetheless conclude
that the action of the Board in not seeking certiorari in the
Ladish case is more significant than might generally be the
situation. When the Board decided the Ladish case, it had been
reversed by the First and Fourth Circuits, and its decision in the
Ladish case represented a “thorough examination” of the issue
and was, in fact, a major decisional effort. On its facts the case
was a strong one, in my opinion, for presenting the Board’s
position on the issue.’ Having made this major effort and lost
again and then determining not to seek certiorari in the Ladish
circumstances, the Board has now dccided to hold—at least I
so interpret its action—that in-plant food prices are not a
mandatory subject of bargaining. I thus conclude that Respond-
ent did not violate the Act by refusing to bargain about such
prices and that it also did not violate the Act by refusing to
furnish information in such connection. Nor is this result
affected by the fact that Respondent has bargained with Local
588 concerning other (non-price) aspects of its in-plant food
facilities. N. L. R. B. v. Ladish Co., 538 F. 2d at 1272.°
8. It is noted that in its Brief (p. 16) filed with the Court in the
Ladish case, the Board urged that the facts therein “are stronger”
than in the Westinghouse, McCall, and Package Machinery cases.
9. In view of these conclusions, it is unnecessary to consider
Respondent’s “zipper-clause” contention.
A45
I shall accordingly recommend that the complaint be dis-
missed.
Conclusions of Law
1. Respondent is an employer within Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within Section 2(5) of
the Act.
3. Respondent has not engaged in the violations of Section
8(a)(1) and (5) alleged in the complaint.
Upon the foregoing, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
It is ordered that the complaint be dismissed.
Dated at Washington, D. C.
/S/ RALPH WINKLER
Ralph Winkler
Administrative Law Judge
10. In the event no exceptions are filed as provided by Section
102.46 of : :
Boar a ya wy ho — _ Regulations of the National Labor Relations
shall, as provided in Section 102.48 of the Rul :
adopted by the Board and become its aaa mageations, be
Order, and all objections thereto
a ) shall be deem
conclusions, and recommended Order herein
onciusions, and
ed waived for all
A46
APPENDIX C
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
March 23, 1978
Before
Hon. LuTHER M. SwyGERT, Circuit Judge
“Hon. RoBerT A. SPRECHER, Circuit Judge
Hon. RoBErT A. GRANT, Senior District Judge*
Forp Motor Co. (CHICAGO )
STAMPING PLANT),
Petitioner,
No. 77-1707 aa On Petition for Re-
view and Cross-
NATIONAL LABOR RELATIONS BOARD, : Application for En-
Respondent, forcement of an
and Order of the Na-
tional Labor Rela-
LocaL 588, UNITED AUTOMOBILE, tions Board.
AEROSPACE AND AGRICULTURAL |
IMPLEMENT WORKERS OF AMER-
ica, UAW,
Intervenor. }
On consideration of the petition for rehearing and suggestion
for rehearing in banc filed in the above-entitled cause by peti-
tioner, Ford Motor Company, no judge in active service has
requested a vote thereon, and all of the judges of the original
panel have voted to deny a rehearing, Accordingly,
IT IS ORDERED that the aforesaid petition for rehearing be,
and the same is hereby, DENIED.
* Hon. Robert A. Grant, Senior District Judge for the Northern
District of Indiana, is sitting by designation.
A47
APPENDIX D
UNITED STATES CoURT OF APPEALS
For the Seventh Circuit
Forp Motor COMPANY (CHICAGO )
STAMPING PLANT),
Petitioner,
vs.
NATIONAL LABOR RELATIONS BOARD,
. No. 77-1707
and
LocaL 588, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMER-
ica, UAW,
intervenor. |
JUDGMENT
Before: SwyGERT and SPRECHER, Circuit Judges and GRANT,
Senior District Judge.*
THis CAUSE came on to be heard upon the petition of Ford
Motor Company (Chicago Stamping Plant), to review an order
of the National Labor Relations Board issued against said
Petitioner, its officers, agents, successors and assigns and upon
the Board's cross-application for enforcement of said order. The
Court heard argument of respective counsel on January 10,
1978, and has considered the briefs and transcript of the record
filed in this cause. On February 22, 1977, the Court being fully
advised in the premises handed down its opinion denying the
* Senior District Judge Robert A. Grant of the Northern District
of Indiana is sitting by designation.
A48
petition for review and granting enforcement of the Board’s
order.
On CONSIDERATION WHEREOF, it is hereby ordered and ad-
judged by the United States Court of Appeals for the Seventh
Circuit that the said order of the National Labor Relations
Board in said proceeding be enforced and that Ford Motor
Company (Chicago Stamping Plant), its officers, agents, suc-
cessors and assigns abide by and perform the directions of the
Board in said order contained.
It Is FURTHER ORDERED AND ADJUDGED by the Court that
costs shall be taxed against the Petitioner.
/s/RoBERT A. SPRECHER
Judge, United States Court of Ap-
peals for the Seventh Circuit
A49
APPENDIX E
Section 8(a)(1) and (5) and Section 8(d) of the National
Labor Relations Act (61 Stat. 140-3, as amended, 29 U. S. C.
158) provide in pertinent part:
“(a) It shall be an unfair labor practice for an employer
(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 7;
* * * * «
(5) to refuse to bargain collectively with the repre-
sentatives of his employees, subject to the pro-
visions of section 9(a).
* x * * *
“(d) For the purposes of this section, to bargain collectively
is the performance of the mutual obligation of the em-
ployer and the representative of the employees to meet
at reasonable times and confer in good faith with
respect to wages, hours and other terms and condi-
tions of employment. . .”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.