Ford Motor Co.

National Labor Relations Board - Board Decisions

Jul 11, 1977

230 N.L.R.B. 716 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ford Motor Company (Chicago Stamping Plant) and
Local 588, United Automobile, Aerospace and
Agricultural Implement Workers of America. Case
13-CA- 15340
July 11, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On December 1, 1976, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs 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 Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative 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 Automo-
bile, Aerospace and Agricultural Implement Workers
of America (hereinafter called Union), in regard to
the plant's vending machine and cafeteria prices and
services. The Administrative Law Judge found that,
on the basis of the Board's decisions, in-plant food
prices are a mandatory subject of bargaining.
However, he nevertheless found that the Board's
action in failing to seek review of the Seventh
Circuit's reversal of Ladish Co.,2 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
therewith. We disagree on all counts.
The facts are not in dispute and may be summa-
rized 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
I The General Counsel has made a motion to correct the transcript and
states that all parties agree to the corrections. In the absence of any
opposition thereto. the motion is hereby granted
Services pursuant to a 1972 agreement with the
Respondent. 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 approved 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.
Section 3(a) of the agreement provides that ARA
be reimbursed 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 percent 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 service
provided by that caterer. Since 1967, the local
contract has included provisions dealing with vend-
ing and cafeteria services. The contracts have
covered the staffing of service lines, adequate
cafeteria supervision, restocking and repairing vend-
ing machines, and menu variety. The 1974 local
agreement also states, "The Company recognized its
continuing responsibility for the satisfactory perfor-
mance of the caterer and for the expeditious
handling of complaints concerned with such perfor-
mance."
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 breaks, 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
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.
230 NLRB No. 101
716
FORD MOTOR COMPANY
personal lockers. 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 extermina-
tor services upon complaints as to sanitary condi-
tions 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 amount 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 manag-
er, Brown, asking to bargain about prices and
services:
Dear Mr. Brown:
As the certified Bargaining Agent for your
Production and Maintenance Employees, Local
588 is concerned about prices and services in
cafeteria and vending operations. We would like
to bargain with you regarding these prices and
services.
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 discusss 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 13, 1976, requesting to meet with the
4 156 NLRB 1080(1966).
5 172 NLRB 540 (1968).
6 191 NLRB 268 (1971).
7219 NLRB 354(1975).
8Package Machinery Company v. N.LR.B.. 457 F.2d 936 (C.A. 1. 1972).
9 Westinghouse Electric Corporation v. N.LR.B., 387 F.2d 542 (C.A. 4,
1967); McCall Corporation v. N.LR.B., 432 F.2d 187 (C.A. 4, 1970).
N.L. R. B. v. Ladish Co., 538 F.2d 1267 (C.A. 7, 1976).
" We note that the instant case, on its facts, is in many respects 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 nght 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
Company for the purpose of negotiating prices
and services provided by A.R.A. food service.
Similar requests have been made by the Union
in the past, and that Company's response has
been the same, that food prices and services are
not a proper subject for negotiations. Appropri-
ately, your request is denied.
T. M. Brown
In the meantime, the Union, on February 16, 1976,
began a boycott of the food service 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 Westingthouse Electric
Corporation,4 McCall Corporation,5 Package Ma-
chinery Company,6 and Ladish, 7 and that on the basis
of those decisions in-plant food prices are a manda-
tory 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 previous-
ly indicated, the Administrative Law Judge, relying
on the First,8 Fourth,9 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 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 Circuits, we adhere to our position that
cafeteria and vending machine prices are a mandato-
ry subject of bargaining." Nor does the Board's
failure to seek certiorari in those cases indicate an
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 Ladi.h, 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 necessary on occasion to extermi-
nate). Additionally. the employees have apparently been so concerned with
the food pncing 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
(Continuedj
717
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.12 Accordingly, we find that Re-
spondent has violated Section 8(a)(5) and (1) of the
Act by refusing to bargain about the price increases
it placed into effect.
We further find that Respondent violated the same
sections of the Act by also refusing to bargain about
the food services provided by it through a contract
with ARA. The Respondent acknowledges 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.13 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
Respondent in its denial of the Union's request to
bargain about 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 the Respondent refused to
bargain about the food services provided its employ-
ees.
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. We have
found that food prices and services are mandatory
subjects of bargaining. The requested information is
clearly relevant to those subjects and hence is
necessary to the Union's fulfilling its duty as a
bargaining agent also to those matters.14
THE REMEDY
Having found that the Respondent has unlawfully
refused to bargain and supply information to the
Union concerning food prices and services, we shall
order that it cease and desist therefrom and take
certain affirmative action to effectuate the policies of
good example of a situation in which bargaining could be both disruptive of
stable relations and economically wasteful." Id. 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
court's view, there is no potential for conflicting union demands in this case.
12 By relying on U.S. court of appeals' decisions which are contrary to
applicable Board precedent, the Administrative Law Judge in this case has
committed an error. It is not for an Administrative Law Judge to speculate
as to what course the Board should or would follow where a circuit court has
expressed disagreement with the Board's views. That is the province of the
Board alone. It remains the Administrative Law Judge's duty to apply
established Board precedent which the Supreme Court or the Board has not
the Act. As we held in Westinghouse Electric Corp.,
supra, "It is sufficient compliance with the statutory
mandate ... if management honors a specific union
request for bargaining about changes made or to be
made." 156 NLRB at 1081. Accordingly, as in
Westinghouse, our order will not require the Respon-
dent "to bargain about every proposed price change
in food prices before putting such change in effect."
We will require the Respondent to bargain on such
price change only after they are determined unilater-
ally and upon a request of the Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material herein, the Union has
been and is the 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
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
department, employees engaged in designing,
drafting, laboratory, photographic and other
technical, experimental and/or research work,
cafeteria and dining room employees, 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.
4. By refusing, on and since February 18, 1976, to
bargain collectively with the Union as the exclusive
representative of its employees in the aforesaid
bargaining unit, concerning plant vending machine
and cafeteria services and price changes, Respondent
has engaged in and is engaging in unfair labor
reversed. Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1963); Novak
Logging Company, 119 NLRB 1573, 1575-76 (1958); Insurance Agents'
International Union, AFL-CIO (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.LR.B., 170 F.2d 247 (C.A. 7, 1948); improvements in
lunchroom equipment and supplies, Preston Products Company, Inc., 158
NLRB 322 (1966); the scheduling of coffeebreaks, and providing the service
of free coffee, Fleming Manufacturing Company, Inc., 119 NLRB 452 (1957).
14 N.LR.B. v. Acme Industrial Co., 385 U.S. 432 (1967).
718
FORD MOTOR COMPANY
practices within the meaning of Section 8(a)(1) and
(5) of the Act.
5. By refusing, on and since February 18, 1976, to
bargain and to supply the information requested by
the Union concerning the Respondent's role in the
cafeteria and vending machine operation, which
information is necessary for the Union's performance
of its duty as exclusive bargaining agent, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(l)
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 Stamping Plant),
Chicago Heights, Illinois, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing, upon request, to bargain collectively
with Local 588, United Automobile, Aerospace and
Agricultural Implement Workers of America, as the
exclusive bargaining representative of its employees
in the following appropriate unit with respect to food
services and changes in food prices in the vending
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
department, employees engaged in designing,
drafting, laboratory, photographic and other
technical, experimental and/or research work,
cafeteria and dining room employees, 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 bargaining, in relation to its role in the
cafeteria and vending machine operation.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed 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
organization with information necessary for collec-
tive-bargaining, in relation to its part or role in the
cafeteria and vending machine operations.
(c) Post at its plant in Chicago Heights, Illinois,
copies of the attached notice marked "Appendix." 15
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 it for 60 consecutive
days thereafter, in conspicuous 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.
's In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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 Implement 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 vending machines and cafeterias:
All production and maintenance employ-
ees 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 department, employees en-
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in designing, drafting, laboratory,
photographic and other technical, experi-
mental and/or research work, cafeteria and
dining room employees, 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 employees in the afore-
said unit with respect to food services and any
changes, now in effect or hereafter made or
proposed, in 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.
FORD MOTOR COMPANY
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: This case
was heard on August 16, 1976, in Chicago, Illinois, upon a
complaint issued by the General Counsel on May 16, 1976,
and an answer filed by Respondent Ford Motor Company.
International 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.
I. THE UNFAIR LABOR PRACTICES
The Issue
Respondent has a Stamping Plant in Chicago Heights,
Illinois. 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 opera-
tion. These employees are represented by the International
Union, with Local 588 as its administrative component,
and there is no other union in the plant. Collective-
' ARA has been providing such services since 1970. Another caterer
provided similar services before that time.
bargaining agreements have been operative between the
parties at all material times here.
The principal issue is whether Respondent violated
Section 8(aX)() 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 employ-
ment" 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 discussed,
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
"catering-vending" agreement between Respondent and
ARA.1 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 operation
along with necessary management and labor personnel;
furnish products of quality in accordance with specifica-
tions approved by Respondent and in accordance with a
price and portion 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
receipts 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 indepen-
dent contractor 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. 2 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.
2 ARA also maintains an executive dining room and a salaried cafeteria
which are not available to bargaining unit employees.
720
FORD MOTOR COMPANY
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 during shift
changes, as well, but only food from the vending machines
is available at those times.
The second (or "satellite") cafeteria also is air-condi-
tioned; it accommodates 50 to 100 persons and is open for
two of the three lunch periods on the day and evening
shifts. This cafeteria does not have a steam table or
cafeteria service; it does have approximately 12 vending
machines serving hot and cold sandwiches, beverages,
stews, soups, spaghetti, pastry, ice 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 vending 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
- approximately 1,600, or approximately 50 percent of the
employees on the first two shifts - have a 5-minute
washup period before their lunchbreak and two 22-minute
rest periods.
The following table 3 is a representative showing of
patronage of cafeteria and vending machine services
during the indicated weeks:
Week
10/12-10/18/75
11/15-11/21/75
1/10--1/16/76
2/28--3/5/76
All Hourly Total Vending
Cafes Cafes Plant Pop. Sales
6,745 5,600
3,938 3,865
3,947 3,873
875 820
4,445
3,755
3,750
3,950
96,279
61,568
70,560
16,741
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. 5 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
collective-bargaining agreements covering plant employees
since approximately 1956 when the International was
certified as their statutory bargaining representative. These
have actually been national agreements, and the national
contract at material times here was effective from Novem-
ber 1973 until September 1976. Pursuant to practice, Local
588 and Respondent have also negotiated 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 cafete-
ria or vending machine prices. (During negotiations for the
1974 Local Agreement, Respondent had rejected Local
588's request that it bargain about in-plant food prices.)
Respondent has meanwhile recognized "its continuing
responsibility for the satisfactory performance of the
caterer and for providing the Union with a means for
registering and expeditious handling of complaints con-
cerned with such performance." This "recognition" ap-
pears as the last paragraph in the following letter of
understanding, dated October 29, 1967, from Respondent
to Local 588, this letter being included in the parties' 1970
Local Agreement (Jnt. Exh. 8, pp. 5-6):
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 employ-
ees. There are five short-order eating places and five
sitdown 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,4 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 refrigerating food they bring in. According
to Local 588's president, Richard Marco, the locker rooms
are not well ventilated and become "very hot and sticky
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, fn. 5. of the General Counsel's bnef
4 Moreover. employees may not leave the plant without permission
during their 22-minute breaks.
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
inspection after washing, and in the event of a
temporary 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.
Marco. while testifying on August 16. 1976. said that he received the
last such complaint in May 1976.
721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, includ-
ing 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 schedules. 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 break-
down, an instant means of communication with the
mechanic will be provided.
The Local Agreement of 1970 also contains two other
communications from Respondent to Local 588. The first,
dated November 15, 1964, reads (Jnt. Exh. 8, p. 40):
Supplemental Eating Facilities
This is to advise that in accordance with our
discussions during 1964 local negotiations, the Compa-
ny intends to install a permanent type eating facility
equipped with vending 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 cafeteria is open.
The 1974 Local Agreement contains a letter of under-
standing 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"l 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
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
and that the quality of such items will continue to meet
Company standards.
The Company recognizes its continuing responsibili-
ty for the satisfactory performance of the caterer and
for the expeditious handling of complaints concerned
with such performance.
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 inspec-
tion and improvement 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 cafeteria and vending items, effective February 9,
1976. Local 588 had not been previously advised of the
increases, and Respondent did not furnish specific infor-
mation 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
19 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 provi-
sions (the June 20, 1974, agreement set forth above) and to
prepare for upcoming 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.
722
FORD MOTOR COMPANY
Meanwhile, on February 16, 1976, Local 588 began a
boycott of the food services operations. "Substantially in
excess of half of the members of Local 588" observed the
boycott, according 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 ineffectiveness 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 con-
cluded 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 operated by
a catering service pursuant to contract with Westinghouse;
under the contract, the caterer paid Westinghouse a rental
of $1 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
Nor was such evidence offered in the present case.
The 1973 contract between Respondent and the Union included wage
"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 widespread industrial practice"
(387 F.2d at 548, emphasis supplied). 6
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
Timber Co. case (87 NLRB 672 (1949)) involving a sawmill
and lumber camp setting, a Board panel concluded that
food prices "constitute 'conditions of employment' and
bargainable matters" and that McCall violated Section
8(a)(5) by refusing to bargain 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. LR.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 concern-
ing food and beverage prices. The company refused, and a
Board panel found a violation of Section 8(aX5) upon the
basis of its Westinghouse and McCall decisions. Referring
to the aforementioned court decision in Westinghouse, 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).7
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. brief, 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 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.
increases as well as a cost-of-living allowance geared to the Combined
Consumer Price Index (Jnt. Exh. 4. pp. 96-97).
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Administrative Law Judges are bound by Board deci-
sional 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 determina-
tion might have been influenced by the lack of a conflict
between the circuits and the Board's awareness of the
difficulty of obtaining Supreme Court review without a
conflict. In other words, it is possible that the Board may
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 Machiners cases.
" In view of these conclusions, it is unnecessary to consider Respondent's
"zipper-clause" contention.
'0 In the event no exceptions are filed as provided by Sec. 102.46 of the
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.8 Having made this major effort and lost again
and then determining not to seek certiorari in the Ladish
circumstances, the Board has now decided 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 Respondent 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 (nonprice) aspects of its in-plant food facilities.
N.L.R.B. v. Ladish Co., 538 F.2d at 1272.9
I shall accordingly recommend that the complaint be
dismissed.
CONCLUSIONS OF LAW
i. 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)(l) and (5) alleged in the complaint.
Upon the foregoing, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 10
ORDER
It is ordered that the complaint be dismissed.
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
724