McCall Corporation v. NLRB, No. 12638.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtPER CURIAM
Citation432 F.2d 187
PartiesMcCALL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Docket NumberNo. 12638.
Decision Date17 September 1970

432 F.2d 187 (1970)

McCALL CORPORATION, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12638.

United States Court of Appeals, Fourth Circuit.

Argued May 6, 1970.

Decided September 17, 1970.


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.

PER CURIAM:

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

432 F.2d 188
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.

SOBELOFF, Circuit Judge (dissenting):

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...

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9 practice notes
  • Ford Motor Company v. National Labor Relations Board, No. 77-1806
    • United States
    • United States Supreme Court
    • 14 Mayo 1979
    ...1080, 1081, enf'd, 369 F.2d 891 (CA4 1966), rev'd en banc, 387 F.2d 542 (1967); McCall Corp., 172 N.L.R.B. 540 (1968), enf. denied, 432 F.2d 187 (CA4 1970); Package Machinery Co., 191 N.L.R.B. 268 (1971), enf. denied, 457 F.2d 936 (CA1 1972); Ladish Co., 219 N.L.R.B. 354 (1975), enf. denied......
  • Seattle First National Bank v. NLRB, No. 24613.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 11 Junio 1971
    ...court of appeals recently denied enforcement of the Board's order in McCall, relying solely on Westinghouse, supra. McCall Corp. v. NLRB, 432 F.2d 187 (4th Cir. 1970) (Sobeloff, J., dissenting).406 F.2d 552 (9th Cir. Westinghouse and McCall Corp. concerned cafeteria food prices. There is no......
  • American Federation of State, County and Municipal Employees, Local 1893 v. State Bd. of Higher Educ.
    • United States
    • Court of Appeals of Oregon
    • 24 Octubre 1977
    ...(7th Cir. 1976); Seattle First National Bank v. N. L. R. B., 444 F.2d 30, 34, n. 5 (9th Cir. 1971); McCall Corporation v. N. L. R. B., 432 F.2d 187, 188 (9th Cir. 1970); Westinghouse Electric Corporation v. N. L. R. B., 387 F.2d 542, 547-49 (4th Cir. 1967); N. L. R. B. v. Central Illinois P......
  • Ford Motor Co. (Chicago Stamping Plant) v. N.L.R.B., No. 77-1707
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 23 Marzo 1978
    ...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 (1st Cir. 1972); and N.L.R.B. v. Ladish Co., 538 F.2d 1267 (7th Cir. The Boar......
  • Request a trial to view additional results
9 cases
  • Ford Motor Company v. National Labor Relations Board, No. 77-1806
    • United States
    • United States Supreme Court
    • 14 Mayo 1979
    ...1080, 1081, enf'd, 369 F.2d 891 (CA4 1966), rev'd en banc, 387 F.2d 542 (1967); McCall Corp., 172 N.L.R.B. 540 (1968), enf. denied, 432 F.2d 187 (CA4 1970); Package Machinery Co., 191 N.L.R.B. 268 (1971), enf. denied, 457 F.2d 936 (CA1 1972); Ladish Co., 219 N.L.R.B. 354 (1975), enf. denied......
  • Seattle First National Bank v. NLRB, No. 24613.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 11 Junio 1971
    ...court of appeals recently denied enforcement of the Board's order in McCall, relying solely on Westinghouse, supra. McCall Corp. v. NLRB, 432 F.2d 187 (4th Cir. 1970) (Sobeloff, J., dissenting).406 F.2d 552 (9th Cir. Westinghouse and McCall Corp. concerned cafeteria food prices. There is no......
  • American Federation of State, County and Municipal Employees, Local 1893 v. State Bd. of Higher Educ.
    • United States
    • Court of Appeals of Oregon
    • 24 Octubre 1977
    ...(7th Cir. 1976); Seattle First National Bank v. N. L. R. B., 444 F.2d 30, 34, n. 5 (9th Cir. 1971); McCall Corporation v. N. L. R. B., 432 F.2d 187, 188 (9th Cir. 1970); Westinghouse Electric Corporation v. N. L. R. B., 387 F.2d 542, 547-49 (4th Cir. 1967); N. L. R. B. v. Central Illinois P......
  • Ford Motor Co. (Chicago Stamping Plant) v. N.L.R.B., No. 77-1707
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 23 Marzo 1978
    ...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 (1st Cir. 1972); and N.L.R.B. v. Ladish Co., 538 F.2d 1267 (7th Cir. The Boar......
  • Request a trial to view additional results

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