NLRB v. Package Machinery Company
| Decision Date | 30 March 1972 |
| Docket Number | No. 71-1344.,71-1344. |
| Citation | 457 F.2d 936 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, Appellant, v. PACKAGE MACHINERY COMPANY, Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Robert A. Giannasi, Atty., Washington, D.C., with whom Peter G. Nash, Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, were on brief, for petitioner.
Jerome N. Weinstein with whom Herrick, Smith, Donald, Farley & Ketchum, Michael R. Brown, Walter E. Graham, and Peter L. Resnick, Boston, Mass., were on brief, for respondent.
Benjamin Werne, New York City, Norman D. Alvy, Hempstead, N. Y. and Naomi Werne, Jamaica, N. Y., on brief for The National Automatic Merchandising Assn., amicus curiae.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
A union1 representing the employees of respondent Package Machinery Company sought to bargain with the company over the prices to be charged in the cafeteria and food vending machines. This demand was made when the company notified the union that prices were to be advanced; e.g., coffee and soda from 10¢ to 15¢; milk to be in smaller containers. The restaurant and vending machines are, so to speak, a concession in reverse; the company pays a national vending concern a subsidy in order to persuade it to conduct the operation.2 The company refused to bargain over the price rises and eventually an order was entered by the Board.3
Basically, indeed, very broadly, the Board wishes us to adopt its Westinghouse Corporation decision, 156 N.L.R. B. 1080, reversed en banc, Westinghouse Elec. Corp. v. NLRB, 4 Cir., 1967, 387 F.2d 542. The principle presently advanced by the Board is potentially a far-reaching one, for notwithstanding its attempted reliance on prior cases for support the Board in fact seeks a newly-expanded definition of "conditions of employment," 29 U.S.C. § 158(d), as it relates to company-supplied food services. At the outset we note that this is obviously not the case of hardship present in Weyerhaeuser Timber Co., 1949, 87 N. L.R.B. 672, involving food services at a remote logging camp. Here over 90% of the employees come to work by automobile; there are several restaurants or cafeterias within a five-minute drive, and although virtually all employees use the vending machines at one time or another, only 50% patronize the company cafeteria. On this record the case is weaker than Westinghouse Electric, ante, where the Board found that there were "inadequate dining facilities within a reasonable distance of the plants" and that Westinghouse employees were "compelled" to eat on the premises.4 No such finding was made here. Nor does the company propose to discontinue the services. The union seeks to debate simply the...
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