McCall Corporation v. NLRB, 12638.
Decision Date | 17 September 1970 |
Docket Number | No. 12638.,12638. |
Parties | McCALL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
Court | U.S. Court of Appeals — Fourth Circuit |
Francis X. Lee, Dayton, Ohio (John O. Henry and Estabrook, Finn & McKee, Dayton, Ohio, Robert H. Patterson, Jr., and McGuire, Woods & Battle, Richmond, Va., Philip R. Becker and Cowden, Pfarrer, Crew & Becker, and John Heron, Dayton, Ohio, on brief (for petitioner.
Glen M. Bendixsen, Atty., N.L.R.B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Michael S. Winer, Atty., N.L. R.B., on brief), for respondent.
Benjamin Werne, New York City, for National Automatic Merchandising Assn. as amicus curiae.
Before SOBELOFF, BOREMAN and BUTZNER, Circuit Judges.
In Westinghouse Electric Corp. v. NLRB, 387 F.2d 542 (4th Cir. 1967), this court, sitting en banc, declined to enforce an order of the National Labor Relations Board requiring an employer to bargain over the prices of food served by an independent contractor in the company's cafeterias. We held, with two judges dissenting, that under the circumstances of the case the cafeteria prices were not "conditions of employment" within the meaning of Section 8(d) of the Labor Act 29 U.S.C. § 158 (d), and that consequently the employer's refusal to bargain on this issue was not a violation of Section 8(a) (5) and (1) of the Act 29 U.S.C. § 158 (a) (5) and (1). The reasons for and against this ruling have been adequately discussed in the majority and minority opinions on the subject and need not be recounted.1
The Board now asks us to overrule Westinghouse. We are not, however, persuaded that we should. Neither intervening authority nor change in circumstances suggests any cause for departing from our decision.
Alternatively, the Board seeks to distinguish the cases. The material facts, however, are similar. Here, as in Westinghouse, the employees had other places to eat or they could bring their own lunches. In neither instance were the plants so isolated that employees were dependent on the food that caused the controversies. It is this circumstance that chiefly distinguishes these cases from Weyerhaeuser Timber Co., 87 NLRB 672, 25 LRRM 1163 (1949).
The principal factual difference between Westinghouse and McCall lies in the degree of control the employer exercised over the caterers who sold the food. In Westinghouse the caterer fixed the prices subject to a contractual provision that the "quality and prices of the meals served and the hours of service thereof in said cafeteria shall at all times be reasonable." The employer could enforce this provision by unilaterally terminating the contract on sixty days written notice. In McCall the employer supplied the food and fixed the prices. We believe, however, 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.
Enforcement denied.
The court is here concerned with the question whether the price charged for food in certain plant vending machines was a mandatory subject of bargaining. The Board held that it was and ordered the Company to bargain over the issue. The Company, however, disclaims any obligation to bargain, maintaining that the price of the food sold in the machines is not a "condition of employment" within the meaning of section 8(d) of the Taft-Hartley Act.
My objection to the court's result is twofold. I adhere to the view previously expressed by Judge Craven and myself that Westinghouse Electric Corp. v. NLRB, 387 F.2d 542 (4th Cir. 1967), rev'g 369 F.2d 891 (4th Cir. 1966), was wrongly decided. 387 F.2d at 550; 369 F.2d 891. But I also think this case quite distinguishable from Westinghouse.
I align myself with both Judge Craven, writing for the original panel in Westinghouse, and with Judge Boreman, writing for the majority en banc, in the view that the test whether an issue is a mandatory subject of bargaining was properly defined by this court in NLRB v. Lehigh Portland Cement Co., 205 F.2d 821 (4th Cir. 1953), as whether the issue "materially affects the conditions of employment." Id. at 823. As Judge Hamley has noted in a recent opinion for the Ninth Circuit, that determination "depends upon an evaluation of the relevant facts of the particular case." American Smelting and Refining Co. v. NLRB, 406 F.2d 552 (9th Cir. 1969). Starting from this premise I have two difficulties with the reasoning of the Westinghouse majority and the majority in the present case.
One could hardly imagine a situation where the Board's expertise would be more relevant and helpful than in giving content to the phrase "conditions of employment" in order to determine which issues are properly mandatory subjects of bargaining. How, on the facts either of this case or the Westinghouse case, the majority finds the Board's decision clearly precluded is beyond my comprehension. The price of food supplied on company premises seems realistically to be a "condition of employment" subject to mandatory bargaining. "In common parlance, the conditions of a person's employment are most obviously the various physical dimensions of his working environment." Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 222, 85 S.Ct. 398, 409, 13 L.Ed.2d 233 (1964) (Stewart, J., concurring).1 No employee can reasonably be expected to work a full eight-hour day without eating. Accordingly, I regard the availability or nonavailability of reasonably priced food as an important "physical dimension" of any employee's working environment. The monetary amount at issue in a given case is irrelevant; the test of "materiality" we erected in NLRB v. Lehigh Portland Cement Co., supra, is a qualitative, not quantitative, test.
The majority apparently embraces the view that the furnishing of food by an employer does not become a significant feature of the employment relationship unless the employees have no alternative whatsoever. This is too restrictive a construction of the words "conditions of employment." Here, as in Westinghouse, there was substantial evidence that reasonable alternative sources of food were not available. The record demonstrates an ample basis for the Board's conclusion that outside sources of food (restaurants, chuck wagons, etc.) are an inadequate source of supply when available, and are not available at all for employees on some shifts. The Company cafeteria cannot accommodate all employees and at any rate cannot be...
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