Westinghouse Electric Corporation v. NLRB

• Decision Date: 23 November 1966
• Docket Number: No. 10545.,10545.
• Citation: 369 F.2d 891
• Parties: WESTINGHOUSE ELECTRIC CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

369 F.2d 891 (1966)

WESTINGHOUSE ELECTRIC CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 10545.

United States Court of Appeals Fourth Circuit.

Argued October 5, 1966.

Decided November 23, 1966.

John G. Wayman, Pittsburgh, Pa., (Leonard L. Scheinholtz, Paul A. Manion and Reed, Smith, Shaw & McClay, Pittsburgh, Pa., 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 N. Sohn, Atty., N. L. R. B., on brief), for respondent.

Benjamin Werne and William Roth, New York City, on brief for National Automatic Merchandising Ass'n, as amicus curiae.

Before SOBELOFF, BOREMAN and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge.

Westinghouse Electric Corporation petitions this court to review and set aside an order of the National Labor Relations Board directing that Westinghouse bargain with the Salaried Employees Association of the Baltimore Division, Federation of Westinghouse Independent Salaried Unions (hereinafter referred to as the Association) in respect to changes in food prices at cafeterias in plants comprising the employer's Defense Center near Friendship Airport, about eight miles from the center of Baltimore.¹ The Board cross-petitions for enforcement of its order.

In response to the announcement of an increase in food prices, the Association, exclusive bargaining representative for appropriate units within the Defense Center, requested in October 1964 a meeting with Westinghouse to discuss cafeteria conditions. A meeting was arranged in the office of the Westinghouse industrial relations representative with executives of the Baltimore Catering Company, operator of the cafeterias under contract from Westinghouse.² A representative of Westinghouse was present. He considered his status that of an observer.

Westinghouse adopted the position that the Association would have to discuss food prices exclusively with the caterer, since as an independent contractor it controlled cafeteria prices. Hence, Westinghouse maintained it had no obligation to bargain in respect to the food prices and refused to negotiate the matter with representatives of the Association.

Subsequently, in January 1965, the caterer posted notice of an additional increase of five cents in the price of hot food entrees and of one cent in the price of carry-out coffee. Westinghouse, upon request of the Association to negotiate in regard to these increases, refused again for the stated reason that it had no control over cafeteria prices set by the caterer, an independent contractor.

The unwillingness of Westinghouse to bargain resulted in the filing of an unfair labor practice charge by the Association. A complaint was issued, and after a hearing, a decision was rendered by the Trial Examiner. He found that the Westinghouse eating facilities, including the prices of meals served, constitute a condition of employment within the meaning of Section 9(a) of the National Labor Relations Act;³ that Westinghouse retains a substantial measure of control over the cafeteria prices; and that by its refusal to bargain with the Association in respect to the increase in prices Westinghouse is engaging in unfair labor practices proscribed by Sections 8(a) (1) and (5) of the Labor Act.⁴

The Trial Examiner's recommended order would have required Westinghouse to consult with the Association concerning proposed changes in prices by the catering company before making determinations concerning their reasonableness.

The Labor Board, in January 1966, adopted the findings, conclusions, and recommendations of the Trial Examiner with some modifications. Two of the five Board members filed a vigorous dissent.

The majority of the Board agreed that the disputed matter was a mandatory subject of bargaining and that Westinghouse had committed 8(a) (1) and (5) unfair labor practices by refusing to negotiate after request by the Association. The recommended order was found, however, to be too broad and accordingly was revised to permit Westinghouse to unilaterally consult with the caterer concerning proposed price changes and approve them without notice or discussion with the Association. Even so, the Labor Board majority required that Westinghouse honor "a specific request for bargaining about changes made or to be made."

The question presented by the present petition is a narrow one: whether the prices of food and beverage served in cafeterias at the Westinghouse Defense Center by an independent caterer are the subject of mandatory bargaining. The initial inquiry for the court is whether the cafeteria prices come within the statutory phrase "conditions of employment" as to which Congress has compelled bargaining.

Mr. Justice Stewart, concurring in Fibreboard Paper Products Corp. v. N. L. R. B., states that "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. N. L. R. B., 379 U.S. 203, 222, 85 S.Ct. 398, 409, 13 L.Ed.2d 233, 245 (1964) (Stewart J., concurring). The availability of food and drink at reasonable prices seems to us an obviously important part of one's physical working environment. What, including the air one breathes, could be more "physical"? Why would a company provide its employees a cafeteria on its premises, effectively subsidized,⁵ except for its concern and interest in their physical working environment?

Insistence by Westinghouse that onsite cafeteria conditions are not a subject of mandatory collective bargaining is especially without merit in the present circumstances. The record shows that Westinghouse employees are allowed from thirty to forty-five minutes for lunch and that only inadequate independent eating facilities exist within a reasonable distance of the plants.⁶ Some forty to forty-five percent of Westinghouse employees eat in the plant cafeterias. Those who want hot food are dependent on their employer's cafeterias, although others may prefer to carry lunch pails from home.

The fact that Westinghouse provides the caterer with the space and capital equipment for the nominal rent of one dollar a year and that on at least one occasion it underwrote the caterer's operating loss is strong indication that Westinghouse considers the cafeterias of some significance as a job inducement and as an aid to maintaining employee morale.

Westinghouse seeks to distinguish Weyerhaeuser Timber Co., 87 N. L. R. B. 672 (1949), where the Labor Board held that the employer had a statutory duty to bargain about the price of meals served at its logging camps. It is true that a logging camp is a far cry from metropolitan Baltimore. But the need to eat is the same, and difficulty in doing so may be occasioned by different factors without there being a meaningful distinction between the cases.

Westinghouse has sought to belittle the issue in this case by viewing it solely as a controversy over an increase of a penny a cup on the price of coffee, which it insists could not possibly have any "material effect" on conditions of employment. It argues that this circuit has held that in order to determine whether a particular matter should be a mandatory subject of bargaining within the contemplation of the statute, it must have a "material or significant impact" upon "wages, hours, or other conditions of employment," citing District 50, United Mine Workers v. N. L. R. B., 358 F.2d 234 (4th Cir. 1966), and N. L. R. B. v. Lehigh Portland Cement Co., 205 F.2d 821 (4th Cir. 1953).

True, District 50 did contain those words, but they were spoken in a very different context. There the employer had entered into subcontracts for certain maintenance work and the question was whether it should be required to bargain in advance about every decision to subcontract, merely because such practices might in the future affect employees' work opportunities. It was shown that the pre-existing subcontracting practice had not resulted in any employee suffering a layoff or loss of overtime. The court agreed that on such a record the Board was entitled to conclude that there was no "substantial" adverse impact on the employees caused by the employer's subcontracting decisions. In the case at bar, however, the dispute is not only over the theoretical possibility of a future price increase, but a price increase that has already been instituted and that affects some forty to forty-five percent of the employees. While in District 50 we found no substantial impact on the employees requiring the employer to bargain, we observed that even if the impact were substantial, it might be unduly burdensome and impracticable to require fullscale bargaining in advance of every decision to subcontract before it was put into effect. In keeping with this suggestion, the Board has, in this case, limited its order by the express reservation that the employer need not bargain over proposed price increases in advance, but need discuss such price changes only after they are effectuated unilaterally and upon a specific request of the union.

Similarly, in Lehigh Portland Cement, supra, we held that company-owned housing is a proper subject of collective bargaining if it "materially affects the conditions of employment." The dispute in that case concerned the employer's refusal to bargain after he had unilaterally raised the rents on company-owned housing. We found that where the rent had been below the prevailing rate, "coupled with the convenience of living nearer to the place of work than the great majority of the employees," conditions of employment were sufficiently affected, despite the fact that only twenty-five percent of the workers occupied such housing, and other living quarters were available to them. We thus found a "material" effect although the number of workers affected was substantially less than is...