McCall Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1968

172 N.L.R.B. 540 (N.L.R.B. 1968)

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCall Corporation and Flymen and Inkmen Union
of Dayton , Local No. 616, International Printing
Pressmen and Assistants ' Union of North Amer-
ica, AFL-CIO. Case 9-CA-4170
June 27, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On January 15, 1968, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom, and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision, a
supporting brief, motion to reopen the record,'
request for oral argument,2 and a motion to dismiss 3
A Motion to Reopen the Record was also filed by
Automatic Retailers of America, Inc., and National
Automatic Merchandising Association as amicus
curiae.4 The General Counsel opposed both
Motions to Reopen the Record and the Charging
Union opposed the motion to dismiss.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
not precluded from obtaining its hot foods from other sources, the
evidence establishes that Respondent maintains sufficient control of the
cigarette , candy , and soda machines which A R A. now stocks from
sources other than Respondent, to justify the order issued herein.
' The Respondent 's request for oral argument is hereby denied , as, in our
opinion , the record , including the exceptions and brief, adequately present
the issues and positions of the parties.
' The Respondent has filed a motion to dismiss, arguing that this case is
now moot . Respondent alleges that as a result of "discussions" with em-
ployee representatives , including representatives of the Charging Union,
changes were made in the in-plant food prices in that 10 -ounce milk con-
tainers were offered at a price of IS cents instead of the 16 -ounce con-
tainers previously offered for 20 cents The Charging Union denies that
these discussions amounted to "negotiations " and further alleges that
Respondent has unilaterally increased the price of many items including
two increases in the price of meatloaf sandwiches , since the issuance of the
Trial Examiner 's Decision . This case is clearly distinguishable from Fabrica
de Muebles Puerto Rico , 107 NLRB 905 , and Kentile , Inc, 145 NLRB 135,
which Respondent offers as authority for granting its motion . In those cases
the Board declined to issue an order to bargain where (I) an effective col-
lective-bargaining agreement had already been signed ; and (2 ) the union
had lost its majority through a subsequent election It does not appear that
this case is in fact moot , nor does it appear that the purposes of the Act
would be effectuated by the granting of Respondent 's motion to dismiss.
The motion is therefore denied.
' This Motion to Reopen the Record is, in effect , an appeal from the
Trial Examiner 's denial of A.R.A.'s application to intervene This motion is
denied for the reasons set forth in the Trial Examiner 's Decision The argu-
ment that denial "of the right of A.R.A. to intervene creates unnecessarily
grave issue of constitutionality with respect to 8(b )( 4)(B) since A . R A. has
a contract with Respondent " is without merit.
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner: This case
was heard before me at Dayton, Ohio, on Sep-
tember 19 and 20, 1967, pursuant to a charge filed
on February 2 and an amended complaint issued on
July 31, 1967. The complaint alleges that Respon-
dent, in violation of Section 8(a)(5) and (1) of the
Act, refused to bargain collectively with the Charg-
ing Party concerning plant vending machine food
prices charged to employees.
All parties appeared and were afforded full op-
portunity to be heard and to examine and cross-ex-
amine witnesses . All waived oral argument at the
conclusion of the case. Briefs were received from
Respondent and General Counsel.'
Upon the entire record, and my observation of
the witnesses, I make the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, McCall Corporation,
Dayton, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
' Respondent 's Motion to Reopen the Record is hereby denied as the
evidence sought to be introduced is not newly discovered , and there is no
showing that Respondent was denied an opportunity to introduce such
evidence at the hearing Moreover , accepting the argument that A R A. is
172 NLRB No. 55
FINDINGS AND CONCLUSIONS
1. BUSINESS OF THE COMPANY; LABOR ORGANIZATION
INVOLVED
Respondent , a Delaware corporation, is engaged
in the publication and printing of magazines at its
' An amicus brief was filed by National Automatic Merchandising As-
sociation ( a trade association of vending machine operators ), and Auto-
matic Retailers of America , Inc, herein called A.R.A., an Association
member servicing and operating the vending machines on McCall
premises I denied A.R.A.'s application to intervene as a party since,
among other things, A.R.A. is neither charged with unfair labor practices
nor is any remedial order sought against it.
McCALL CORPORATION
plant in Dayton , Ohio.2 It annually sells and ships
products valued in excess of $50 ,000 to points out-
side Ohio . I find that at all material times Re-
spondent has been and is engaged in commerce
within the meaning of the Act.
The Charging Party, herein called the Union or
Local 616 , is a labor organization within the mean-
ing of the Act.
11. THE UNFAIR LABOR PRACTICES
A. The Issue
The issue presented is whether Respondent vio-
lated Section 8(a)(5) and (1) of the Act by reject-
ing the Union 's request to bargain about increases
in prices of food, prepared by Respondent's
cafeteria employees in its cafeteria and thereafter
placed into and sold to employees out of vending
machines at prices fixed by Respondent , the vend-
ing machines being serviced by an outside contrac-
tor.
B. Background; Contractual Relationships
The Union (Local 616) has been the bargaining
agent for Respondent 's Hymen and inkmen in the
letterpress process pressrooms since May 1963. In
January 1967, 458 of Respondent's 5,928 em-
ployees were represented by that Union. Respon-
dent also has contractual relations with 15 other
unions representing other crafts in the plant.
The current (July 1966-July 1969) collective
agreement between Local 616 and McCall's was
negotiated from June to September 23, 1966, when
it was executed. Although "lunch periods" were
discussed in the negotiations , food prices and ser-
vices in plant facilities were not, the latter subjects
not being raised. Under article IV, section 2 of the
contract ("Lunch Period"), employees are allowed
30 minutes for lunch, but may be required "to work
straight through to the end of their [ 7 1/2-hour]
shift without a lunch period" in order to meet
shipping schedules . In practice , employees working
through lunch periods are relieved for 10 to 15
minutes to eat. There are no contractually
authorized break or rest periods , although em-
ployees in practice leave their stations briefly, with
supervisory approval.
' In addition to McCall Magazine , Respondent publishes Redbook and
Saturday Review . It prints these , as well as other publishers ' publications
(U.S. Week, Newsweek , etc.), on a contract basis at its plant.
' The plant is a two-story building with three levels ( two floors and a
basement), triangular in shape , measuring four city blocks on the longest
side (west to east) and a half block on the narrowest side.
4 The plant operates on an around-the-clock, 7-day week basis. Director
of Industrial Relations O'Connor estimated that 2,400 employees work on
the first (day) shift and 1 , 800 on each of the other shifts . According to O'-
Connor, " the reason that the first shift has a heavier number is that [the]
office force in general would only work on that shift."
541
C. Eating Facilities
Respondent's employees may purchase lunch (1)
in a company-owned and -operated cafeteria, (2)
out of vending machines owned by a contractor but
supplied with company cafeteria-prepared and -
priced food, or (3) off the premises. They may, of
course, bring all or some of their lunch from home.
1. Respondent's cafeteria
The plant cafeteria is operated by company em-
ployees (members of Hotel and Restaurant Work-
ers Union No. 222), under direction of a manager
"in charge of food production ." It is located on the
second floor , "midway in the plant,"3 and is open
during lunch periods ( 10:50 a .m.-12:20 p.m.;
5:30-6:25 p.m .; 1:55-2 : 35 a.m .), of each of the
three shifts ; it is closed on weekends ( Saturday and
Sunday ), except for the first shift on Saturday.4
Food Service Manager Glass testified that although
the cafeteria's "actual " seating capacity is only
300, around 1,500 can be served there daily
because of turnover . The cafeteria 's patronage at
any given time fluctuates , depending upon such fac-
tors as shift , weather conditions , and distance from
worksites.g
2. In-plant vending machines
Eight vending machines dispensing hot and cold
food are situated at four locations in the plant." The
food in these machines is "basically the same type
which is sold in the cafeteria," and includes sand-
wiches, meat casseroles, vegetable platters, ham-
burgers, hot dogs, salads, pies, pastries, and milk. In
Respondent Food Service Manager Glass' words,
the "complete platters" available in the vending
machines constitute "really a small meal ... sup-
plied by the company."
The vending machines are owned and serviced by
A.R.A. Under an oral agreement terminable at will,
A.R.A. obtains all food for these machines from
Respondent's cafeteria kitchen. Glass testified that
it is he, as Respondent's food service manager, who
designates the locations of the vending machines,
allocates the particular food items to be placed in
the machines each day, and determines the prices
to be charged. Glass each day prepares 800 to
6 For example, employee Clark testified that he had formely used the
cafeteria more " frequently" when he worked "much closer" to it. Now,
however, it takes him 6 minutes to get to the cafeteria and unless he "get[s]
up there at the head" of the line before employees in departments closer to
the cafeteria arrive, he "naturally [ is] going to have a longer wait
Twelve additional machines dispense sundry items , such as drinks, can-
dy, cigarettes , ice cream , etc. Only the eight food machines are involved in
this proceeding.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2,000 sandwiches, 150 casseroles, 200 salads, and
500 desserts. These are placed in the machines by
A.R.A., which retains a percentage of the selling
price for the use of its machines and keeping the
machines supplied with the cafeteria-prepared
food.'
Employees normally eat machine-vended food at
their work locations or nearby tables, avoiding the
necessity for utilizing the cafeteria. As testified by
an employee, for employees working through the
lunch period (supra, B), who are allotted only 10 or
15 minutes for eating, unless they have lunch from
home, "the only opportunity ... to eat is to eat out
of the vending machines." 8 The same is true of em-
ployees working overtime when the company
cafeteria and outside eating facilities are closed."
The vending machines are most commonly used
during the third (night, 11 p.m.-7 a.m.) shift lunch
period, as well as during all shifts when employees
leave their stations for brief refreshment. Credited
evidence establishes that- practically all employees
use the vending machines at some time during their
work period.
Several General Counsel witnesses testified,
without contradiction, as to percentages of em-
ployees observed eating lunch out of vending
machines on various shifts in their departments.
Thus, Humphrey, a third-shift employee in the
West Multicolor Department, estimated that 70
percent of the 50 to 60 men in his department sup-
plied themselves from these machines. Clark, a
first-shift employee in the same department, set the
figure at 70 to 75 percent. Second-shift employee
Brown indicated that 75 percent ate from vending
machines during the winter and 25 to 30 percent in
the summer ( when vending trucks at the rear of the
plant service employees-see infra). Third-shift em-
ployee Bandura of the Rotary Department placed
the figure at 90 percent , pointing out that outside
restaurants were closed at night ; while Miller,
another employee in the same department , testified
that when he worked on the third shift he observed
85 to 90 percent, as compared to 75 percent when
he was on the first shift , eat from the machines.
And first-shift employee McIntosh of the McKee
Department estimated that 30 to 40 percent, while
first-shift employee Haller of the Digest -Redbook
Department estimated that 50 to 60 percent of
Local 616 members obtained their lunches from
the machines.10
T The above-described arrangement has been in effect for 10 years. The
sundry items (e.g., candies, cookies, cigarettes), not furnished by Respon-
dent are also subject to Respondent 's approval as to pricing . An A.R.A.
employee , " in charge of A.R A. stock , is assigned plant space to store
these items
6 It is to be noted that since under the collective agreement Respondent
may require employees " to work straight tftirough to the end of their shift
without a lunch period " on one hour's (and even less) notice ( art. IV, sec.
2), employees may have no way of knowing sufficiently in advance to bring
lunchrom home.
Employee Clark testified that "this month I've been working through
lunch every day this month , seven days a week... "
10 Employees other than those of Respondent , working for other compa-
3. Off-the-premises eating places
There are about a dozen outside eating facilities
(restaurants and bars ), in the general area of the
plant , ranging in distance from directly across the
plant to 1-1 /2 miles therefrom. Some employees
concededly have eaten in some of these places, it
being, however, also indicated that they are not
"suitable" because of the "environment on the out-
side and inside," the plant being in a rundown in-
dustrial and "slum " area." Respondent 's personnel
official Hines characterized "some of the housing"
around the plant "as candidacy [sic] for urban
renewal development."
Respondent 's employees have also utilized a
delivery service of a carryout restaurant (Beall's
Drive-In) located about 3 miles (15 minutes' driv-
ing distance ), from the plant, those services being
available only on a 10-order minimum to be
telephoned in and picked up in front of the plant.
Another food and drink source is mobile vending
trucks which are from time to time parked on the
curb near plant entrances. These trucks are not,
however, available to all shifts (particularly not at
night), do not serve the plant area regularly (par-
ticularly not in inclement and cold weather), and
purvey only limited items (e.g., hot dogs, milk, soft
drinks).
D. Local 616's Requests To Negotiate Increases in
Vending Machine Prices
Food Service Manager Glass testified that in
response to complaints about vending machine ser-
vices, he (and his assistant ), and A .R.A. representa-
tives met with several unions five or six times
between March and September 1966. The six to
eight "union people " representing some of the 16
unions in the plant who attended these "informal"
gatherings ,12 passed on their members ' "gripes." As
a result , revisions were made in vending machine
practices , for example , two types of coffee brew
(standard and strong) were introduced , and the
variety of sandwiches and pies was improved. Ac-
cording to Glass, after A.R.A. representatives at the
September 21 meeting "presented some data" in
"justification" of a proposed increase in milk price,
"it was decided " to post the contemplated new
prices by the machines " so that people would know
... [them] ... before the price increase occurred."
vies in the building, as well as women employs of an employer in another
building, are also permitted use of the vending machines.
" Industrial plants adjacent and near Respondent include Inland Manu-
facturing Company described as "quite a bit bigger than McCall's" and
Low Blowers , an automobile parts manufacturer employing 2 ,000 em-
ployees . Employees of these plants presumably also utilize the outside
restaurants . According to Respondent , the maximum (" licensed")
seating capacity for each of 8 restaurants in the plant vicinity is 59 (i.e.,
472 for all); the seating capacity for two others ranges from 60 to 100,
a;d for one other from 10 to 150.
° As noted infra no Local 616 representatives attended any of these
meetings , since none was given notice . Moreover, despite Local 616's
request , no meeting was held after September 1966.
McCALL CORPORATION 543
In November 1966, the price of vending machine
milk was increased from 15 to 20 cents per pint.
Around the same time (October or November),
casseroles were increased from 25 to 30 cents, and
the "cheeseburger deluxe " jumped from 30 to 45
cents . 13 The uncontradicted , credible testimony of
General Counsel 's witness Brown establishes that
"everybody was getting petitions and trying to get
the milk price down , and they were complaining to
Mr. Humphrey " ( then chief Local 616 spokesman
on the Joint Standing Committee administering the
contract ), about the price increases . 14 Minutes of a
Joint Standing Committee meeting held on
November 8, 1966 , 18 show that the Union at that
meeting "complained about the prices [ in the vend-
ing machines ] being too high ( especially on milk)."
When company spokesman O'Connor asked why
Local 616 representatives had not participated in
prior meetings with A.R.A. regarding food services,
the union representatives replied ( according to
Union Secretary Brown 's credited uncontradicted
testimony ), that they "didn 't know anything about
them."
According to the minutes of the January 9, 1967,
Joint Standing Committee meeting , after the Union
again "complained of prices of vending machine
foods" and asked "to negotiate prices, ' Respon-
dent agreed to put the matter "on the agenda for
the next meeting ." The minutes of the next (Janua-
ry 19) meeting , as supplemented by stipulation at
the hearing , show that Local 616 at the meeting re-
peated its request to bargain on " the prices of
vending machine items ." Respondent 's Director of
Industrial Relations O'Connor told the Union's
spokesman , Humphrey , " It wouldn 't be right for
your Union to negotiate over food prices because
there are fifteen other unions in the plant." He
stated , however , that he "would survey other plants
around the city to see whether McCall 's was out of
line" and suggested to Humphrey that he "start at-
tending meetings with the cafeteria people and with
A.R.A." When Humphrey replied he was "not try-
ing to negotiate for other unions, but just for Local
616," O Connor 's response was that "Local 616
represented less than 10 percent of the employees
at McCall 's." Humphrey said , "Well, if we get all
the rest of the unions together we can negotiate
with all of us ." O'Connor replied, "We're not con-
fronted with that now, and I 'm not prepared to
answer that ." To Humphrey 's question , "Will you
negotiate with us over food prices ," O'Connor's
answer was, "No."
IS Credited testimony of Humphrey.
14 There is no reliable evidence on the basis of which a comparison may
be made between vending machine prices and the prices charged in Re-
spondent 's cafeteria or in off-the-premises eateries in the plant area.
16 These minutes were prepared by company representatives but in ac-
cordance with custom were made available for union inspection
16 N.L.R.B. v. Andrew Jergens Co., 175 F 2d 130, 133 (C A 9).
" N.L.R.B. v. Century Cement Mfg. Co., 208 F 2d 84,85 (C.A. 2).
's Industrial Fabricating Inc., 119 NLRB 162, 168 , 189-190, enfd. sub
nom. Frank MacKneish, et al., 272 F 2d 184 (C A 6), N.L.R.B.v Lewis, et
a! d/b/a California Footwear Co., 246 F 2d 886, 888-889 (C.A. 9).
On February 2, 1967, the Union filed the unfair
labor practice charges here. When at a later
February Joint Standing Committee meeting,
Humphrey again asked if O'Connor "would like to
negotiate prices," the latter's response was that he
had been served with the Union's charges.
Conclusions
A.
As the Board and courts have repeatedly
stressed , Congress "of necessity framed in the
broadest terms possible" the scope of the statutory
duty to bargain because of its awareness that "col-
lective bargaining must be kept flexible without
precise delineation of what subjects were covered
so that the Act could be administered to meet
changing conditions." Fibreboard Paper Products
Corp. (East Bay Union of Machinists, Local 1034)
v. N.L.R.B., 322 F.2d 411, 414 (C.A.D.C.), affd.
379 U.S. 203. To deal with so dynamic a matter,
"Congress in the original as well as in the amended
Act [Sections 8(d) and 9(a)] used general language,
evidently designed to meet the increasing problems
arising from the employer-employee relationship."
Inland Steel Company v. N.L.R.B., 170 F.2d 247,
254 (C.A. 7), cert. denied 336 U.S. 960. Giving ef-
fect to these principles, the Board and courts
through the years have found a wide variety of sub-
jects, both traditional and novel, to fall within the
scope of compulsory bargaining. Among the "myr-
iad matters arising from the employer-employee
relationship" (id. at 251) and subject to collective
bargaining , are "such conditions of employment"
as union security,16 employee seniority,17 plant loca-
tions,18 subcontracting,t9 employee housing,20 price
discount practices'21 employee loan repayment
procedures'22 methods of paying employees, 2' and
plant or environmental matters relating to health,
sanitation , and safety."'
Relying on judicially approved cases such as In-
land Steel, supra, the Board, in Weyerhaeuser
Timber Company, 87 NLRB 672, held that eating
facilities maintained by an employer on its
premises, including prices of meals, fall within the
elastic category of working conditions under Sec-
tions 8(d) and 9(a) of the Act. In Weyerhaeuser,
the Board ruled that the employer was required to
bargain with respect to meals furnished to em-
ployees at a sawmill and lumber camp, since these
were "subjects which mutually affect [employer-
's Fibreboard Paper Products Corp. v N L.R.B , 379 U S. 203.
20 N L R.B. v. Lehigh Portland Cement Company, 205 F.2d 821, 823
(C.A. 4), American Smelting and Refining Company, 167 NLRB 204
" N L.R.B v Central Illinois Public Service Company, 324 F.2d 916
(C A. 7)
" Porto Rico Container Corporation , 89 NLRB 1570.
sa Weyerhaeuser Timber Company, 87 NLRB 672, 686.
24 N.L R.B. v. Aluminum Company, 370 U.S. 9 (plant heat ), Preston
Products Company, Inc, 158 NLRB 322, 344-345, remanded on other
grounds 373 F.2d 671 (C.A.D.C.) ( sanitary conditions and towel supply in
toilets ); Gulf Power Company, 384 F.2d 822 (C A 5) (Safety rules)
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee ) interests ." (87 NLRB at 686 .) In so rul-
ing, the Board rejected the contention that the eat-
ing facilities were not mandatory bargaining mat-
ters because employees were not required to
patronize them or because the services were af-
forded merely as a matter of "convenience" or
"personal need" to "certain employees" residing in
isolated areas. (Id. at 672-673, 674, fn. 5.) Quoting
from W.W. Cross and Company, Inc. v. N.L.R.B.,
174 F.2d 875, 878 (C.A. 1), the Board noted that
"Congress intended to impose upon employers a
duty to bargain collectively with their employees'
representatives with respect to any matter which
might in the future emerge as a bone of contention
between them" so long as it involves a matter
respecting rates of pay , wages, hours of employ-
ment , "or other conditions of employment." (87
NLRB at 676.)25
In Westinghouse Electric Corporation , 156 NLRB
1080, the Board applied the Weyerhaeuser doctrine
to in -plant eating facitities ( cafeterias ) operated by
an independent contractor , where the employer
retained and exercised extensive , but not exclusive,
control over cafeteria prices through a contract
with an outside contractor supplying his own food,
stipulating that the prices and quality of the
caterer 's food should be "reasonable ," with the em-
ployer empowered to terminate the contract on a
60-day notice . In that case , 40 to 45 percent of the
employees ate lunch in the cafeterias and the
majority brought lunch from home . Few, if any, left
the company premises because of the brevity of the
lunch period ( 30 or 45 minutes ) and the distance
(1 mile) to and limited capacity of outside eating
facilities . The Board stated (at 1081-82):
Respondent has cafeterias on its premises
because there are inadequate dining facilities
within a reasonable distance of its plants. If it
did not have these facilities, it would not be able
to attract the necessary number of employees
to man its plants. In practical terms , on-site
eating facilities are held out to the employees
and prospective employees as an induce-
ment to work for Respondent. They are thus
conditions of employment . The problem is as
simple as that . It is no answer to say that em-
'" In Weyerhaeuser, the Board held that the meals served also came
within the term "wages" noting that the meals were sold below company
cost and that employees saved transportation expenses to restaurants off
the premises (87 NLRB at 675-676.)
'" The Board's Westinghouse decision was enforced by a panel of the
Court of Appeals for the Fourth Circuit (Judges Craven and Sobeloff, with
Judge Boreman dissenting ). 369 F.2d 891 . Speaking for the Court, Judge
Craven said ( at 898).
Mr. Justice Stewart , concurring in Fibreboard Paper Products Corp.
v N.L.R.B., states that " in common parlance, the conditions of a per-
son's employment are most obviously he various physical dimensions
of his working environment." Fibreboard Paper Products Corp. v.
N.L.R.B., 379 U.S. 203, 222. The availability of food and drink at
reasonable prices seems to us an obviously important part of one's
physical working enviroment . What, including the air one breathes,
could be more "physical?" Why would a company provide its em-
ployees a cafeteria on its premises , effectively subsidized , except for its
concern and interest in their physical working enviroment?
ployees can bring their lunches if they do not
like the prices charged in the cafeterias. We
suppose that employees can also eat cake, if
the cafeterias do not serve bread , or the em-
ployees can go elsewhere if they do not like the
Respondent 's conditions of employment. The
fact is that a considerable number of em-
ployees do not wish to bring their lunches from
home, and if they had to do so would
presumably look for employment elsewhere.
Such employees are in substance and effect
captive customers of the on -site cafeterias....
Experience tells us that disputes over plant
conditions that may appear of minor sig-
nificance to us, such as the length of relief
periods, the schedule of prices charged for
lunches, etc., can lead to the disruption of
operations. In our view it is therefore within
the objective and meaning of the Act to
require parties to submit such controversies to
the healing processes of collective bargaining.
As in Weyerhaeuser, the Board rejected the em-
ployer's contention "that the furnishing of cafeteria
service is not a condition of employment but rather
a convenience to the employees, who may use the
cafeteria or not as they desire" and the further con-
tention that "the term ' condition of employment' as
used in the Act applies only to those conditions
under which employees are compelled to work and
does not embrace any condition which the em-
ployer establishes as a matter of convenience for its
employees." 156 NLRB at 1089. The Board reaf-
firmed its holding in Weyerhaeuser that "the term
was meant to encompass many noncompulsory
aspects of the employer-employee relationship.
( Ibid. )26
B.
The basic issue here is whether, under the cir-
cumstances shown , the food vending machine
facilities on the Company's premises constitute
"conditions of employment" and, therefore, a man-
datory subject of bargaining. Respondent27 con-
tends that they are not , because these facilities are
only remotely related to , and have no material or
However , the panel decision was subsequently reversed on petition for
rehearing en banc, by a four-to-two vote, former dissenting Judge Boreman
this time writing the majority opinion and Judges Craven and Sobeloff
becoming the dissenters by adhering to the original view of the Court. As a
Trial Examiner of the Board, I am, of course , bound by the decision of the
Board , which has not indicated acquiescence in the Fourth Circuit's
revised views. "It has been the Board 's consistent policy for itself to deter-
mine whether to acquiesce in the contrary views of a circuit court of ap-
peals or whether, with due deference to the court 's opinion , to adhere to its
previous holding until the Supreme Court of the United States has ruled
otherwise.... ( lit remains the Trial Examiner 's duty to apply established
Board precedent which the Board or the Supreme Court has not reversed."
Prudential Insurance Company, 119 NLRB 768, 773, fn. 17. See also Ran-
co, Inc ., 109 NLRB 998, 1010, fn. 8.
'r Supported by the National Automatic Merchandising Association,
here amicus.
McCALL CORPORATION 545
significant impact upon , working conditions; that
the vending machines are only one of many food
services available within and about the plant; and
that there is no showing that vending machine
prices have traditionally been subject to collective
bargaining.
1. At the outset , I take cognizance of the fact
that for practical purposes the vending machines
are an adjunct of Respondent 's cafeteria. Vending
machine adjunct is prepared in Respondent 's cafeteria
by Respondent 's employees , under supervision of
Respondent 's food service manager, who
establishes the menu , quality, and price of food
whether cafeteria vended or machine vended. It is
also Respondent who provides the space for and
fixes the locations of the vending machines
throughout the plant , in part presumably to be
more readily accessible to employees than the
cafeteria . Employees are expected to, and as shown
under certain circumstances must , utilize the vend-
ing machine facilities in order to be able to eat at
all. Respondent , in effect, administers and controls
the use and enjoyment of the machine facilities.28 In
my view , if the cafeteria prices are bargainable mat-
ters , so are the vending machine prices , unless the
fact that the machines are owned and stocked by
someone other than Respondent is the determina-
tive factor . In Westinghouse, the Board did not re-
gard the independent contractor factor as con-
trolling , in view of the fact , as found by the Board,
that the employer retained extensive , though not
exclusive , control over the prices and quality of
food. See 156 NLRB at 1089-90. Unlike
Westinghouse , here , the Employer exercises sole
and exclusive control not only over menus , quality,
and pricing of its machine-vended food, but also
over its preparation which is by its own employees.
The machine -vended food is the cafeteria food and
the vending machine prices are the cafeteria
manager 's prices . The food in both cafeteria and
vending machines is Respondent 's food. Ac-
cordingly , I find that the cafeteria -vended food and
machine-vended food are for all practical purposes
a single , integrated , unified plant -feeding operation.
The fact that the refusal to bargain in this case re-
lates only to prices of Respondent 's machine-
vended food is no more significant, for example,
than would be an employer 's refusal to bargain as
to conditions of employment affecting only one of
his two departments represented by a union. An
employer is obligated to bargain on matters affect-
ing a portion of the represented employees "re-
gardless of what that portion may be." Weyer-
haeuser Timber Company, 87 NLRB at 674.
Considering the operations of the cafeteria and
vending machines in combination, it becomes
evident that employees' interest in these facilities is
sufficiently direct to constitute the facilities "condi-
tions of employment" so as to bring matters of con-
troversy respecting their use and enjoyment within
the "mediatory influence of collective bargaining."
Fibreboard Paper Products Co. v. N.L.R.B., 379
U.S. 203, 214. At least 1,500 (25 percent) of Re-
spondent's 6,000 employees utilize the cafeteria
during fixed lunch periods. The vending machines
are used throughout the day. A significant per-
centages of employees, from 25 to 95 percent
of shifts in various departments, obtain their
meals from vending machines during the brief
30-minute lunch periods. The vending machines
are indispensable for employees required to work
through lunch periods, a situation not uncom-
mon in the plant; they are most useful to those
remaining for overtime work and for the night
shifts and Sundays, when off-premises facilities
are closed. Only vending machine facilities are
accessible during working hours to employees
who leave their machines for brief refreshments, an
authorized practice. The vending machines thus
serve an important managerial interest in keeping
eating facilities close to the workbench, thereby
enabling Respondent to maintain continuing and ef-
ficient production. This in itself would make the
vending machines an integral part of the employer-
employee relation and "a condition of employ-
ment."
Respondent's vending machines contribute to
productive efficiency in still another respect. As
noted, the regular lunch period is brief, and there
are no break periods throughout the day. By ob-
taining lunch meals from nearby vending machines,
employees save the time it takes to walk to the
cafeteria29 and to outside restaurants , and of wait-
ing on lines , thereby maximizing employee leisure
and rest periods . Eating from vending machines
a As to vending machines dispensing the sundry items not obtained from 's The distance from workbench to cafeteria depends on the work loca-
the company cafeteria (cigarettes , packaged cookies , etc.)-facilities not tion of employees in the two-story , three-level, four-block building
directly involved in this proceeding-it is admitted that Respondent has
complete veto power also over the supplier 's prices
354-126 O-LT - 73 - pt. 1 - 36
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thus serves as a morale booster and adjunct in good
labor-management relations.30
2. The fact that alternative eating facilities are
available to employees is not determinative. To be
sure, this is a factor to be considered , in assessing
the importance of the vending machines as a work-
ing condition ; and in Westinghouse , the Board re-
lied on this factor , among others , in concluding that
the cafeterias there constituted a necessary aspect
of working for the company .31 However , I do not
believe that the existence of alternative facilities in
itself is sufficient to remove a facility from the
category of bargainable working conditions. Thus,
in Inland Steel Company , 170 F.2d 247 (C.A. 7),
where a pension plan was "optional with the em-
ployees, who could drop out any time" (170 F.2d
at 250 ), the court nevertheless concluded: "cer-
tainly there is ... no sound basis for an argument
that such a plan is not clearly included in the
phrase `other conditions of employment ."' (170
F.2d at 251 .) Similarly, an employer must bargain
about company-sponsored health and accident in-
surance programs , although noncompany programs
are available to its employees . 32 Nor is it essential
that all employees utilize particular safety or sanita-
ry facilities in order to render them bargainable as
conditions of employment . The same is true of a
company practice making employee loans repay-
able in small amounts , or of an employer practice of
giving discount rates on gas sold to employees, or
of an employer 's stock purchase plan. The decisive
factor in each case is whether opportunity to par-
ticipate in a given program or in utilizing a particu-
lar facility is made available to all employees on
equal terms . If so, it is one of the terms or condi-
tions of which any qualified employee can take ad-
vantage.
In any event , here the available alternative eating
places to vending machine facilities are curtailed
and in some situations nonexistent . Since for practi-
cal purposes cafeteria and vending machines con-
stitute a single in-plant operation, each supplement-
ing the other, the cafeteria itself can hardly be
characterized as an alternative facility. Although
some employees bring lunch from home, not all do,
nor perhaps can; and those who work through
lunch periods and overtime without a day's advance
notice have no opportunity to bring lunch from
home if they do not regularly do so. Even em-
ployees who regularly bring lunches normally sup-
plement them with vending machine items. Mobile
vending trucks are only occasionally or irregularly
available, seldom on weekends, and almost never in
winter or inclement weather. Although there are
some off-premises restaurants within proximity of
the plant these are not as accessible as in-plant
facilities, particularly if the brief lunch period must
in part be devoted to walking to and fro and per-
haps waiting. Furthermore, the credited evidence
indicates that they are second rate, are situated in a
rundown industrial and slum area, and are shunned
by many employees. Moreover, it is not unreasona-
ble to assume that going outdoors for lunch in in-
clement weather would, to many employees, con-
stitute an additional inconvenience, if not hardship;
as would the added expense involved in the necessi-
ty, in case of attempting to eat at a greater distance
outside, of obtaining their automobiles in parking
lots and driving to and finding parking spaces near
such outside eating places. The fact that Respon-
dent continues to maintain for its employees on-site
eating facilities would seem to attest to their desira-
bility if not to their indispensability.
3. Nor can the matter here be characterized as
"trifling" or of little concern to employees simply
because it involves only three vending machine
food items.33 Involved in this proceeding is the Em-
ployer's power to unilaterally raise prices of any or
all items furnished to employees, without giving the
employees a chance to be heard. If Respondent can
ignore its employees in raising milk and
cheeseburger prices on one day, it can similarly
ignore them in raising other prices the next day,
and so on until an entirely new price structure is
JD A leading survey on management appraisal of in-plant food services
comments "Questioned specifically, the great majority of executives in-
dicated that employee food services were beneficial to employee morale,
labor-management relations , employee health , and employee productivity,
and about half thought them helpful in recruiting ." Esther S Hochstim,
Employee Food Services in Manufacturing Plants (Agricultural Marketing
Service , Marketing Research Report No 325, June 1959), p. 17 As to vend-
ing machines specifically , the survey notes (p. 49) "Major plusses for
vending machines were the belief that they are an employee benefit and im-
prove morale , and that they keep employees near the job ." According to
the author , "On-premise food service has many advantages-for the em-
ployee , for the company , for both-according to the managers of plants of-
fenngthisservice " (ld at 17 )
For the increased use of food vending machines in industrial plants, see
Hochstim , op cit , p 49, and Factory, "How Small Plants Feed Their
Workers" (December 1962) pp 154-156, 158-160 See also summary of
"inplant feeding " survey at BNA 245. 201-206, where the substantial
importance of plant feeding machines as a significant condition of em-
ployment is indicated (at 245 204)
The amazing development of automatic vending machines in the
past few years has solved many problems of in-plant feeding Whereas
just a short time ago such machines were confined to to the vending of
candy, nuts, cigarettes , and soft drinks , now entire batteries or banks
of machines can be installed to sell complete meals , including soups,
entrees, hot and cold sandwiches , salads, beverages , and dessert
The extended use of vending machines is shown by a survey . Of
1,264 plant officials who replied to the survey, better than eight of 10
are using vending machines , with over one of five depending entirely
upon automatic vending
Employee acceptance of automatic vending machines has been
enthusiastic . They can be located where food cannot otherwise be
supplied . The patronage that they receive during rest periods and at
odd times makes them profitable They can be used to provide food
and beverage service for night -shift workers when the cafeteria nor-
mally is closed
The Board pointed out that although the employees had the alternative
of bringing their lunches , this was not a practicable and desirable alterna-
tive
" See General Motors Corporation, 81 NLRB 779, 786, 792, enfd 179
F.2d 221 (C.A 2).
°J As noted, Respondent raised the vending machine prices of milk from
15 to 20 cents a pint , of cheeseburger deluxe from 30 to 45 cents, and of
casseroles from 25 to 30 cents There is no evidence or indication of like
price increases in the plant cafeteria.
McCALL CORPORATION
established. Furthermore, it is not unreasonable for
employees to assume that if the employer increases
the price of milk, cheeseburgers, and casseroles in
the vending machines, identical increases for identi-
cal items would follow in its cafeteria. As will be
shown (infra, C,3), Respondent itself recognized
the employees' intense concern for food services by
meeting with representatives of several of the plant
unions, five or six times in 1966 (all, however, prior
to Local 616's requests for collective bargaining).'
4. Finally, the circumstance that there is no
showing that on-site feeding facilities have histori-
cally been subject to collective bargaining, while
relevant, is by no means controlling. See Detroit
Resilient Floor Decorators Local Union No. 2265
(Mill Floor Covering, Inc.), 136 NLRB 769, 772,
317 F.2d 269 (C.A. 7). As noted supra, A, the
statutory phrase "wages, hours, and other terms
and conditions of employment" was designedly
made flexible, so that new and changing subject
matter introduced into the bargaining process
might not necessarily be beyond its coverage. The
Board and court decisions recognize that the statu-
tory bargaining requirement is not a static concept
but an evolving one reflecting developments in
practical day-to-day bargaining. These cases ex-
pressly reject Respondent's assumption that bar-
gaining covers only subjects already established as
part of the bargaining process. "The very fact that
Congress has not defined `wages' or `terms' or
`other conditions of employment' makes it clear
that the Board is to deal within its own competence
and expertise with the multiple variance of differing
aspects of the problems arising in these fields."
Richfield Oil Corporation v. N.L.R.B., 231 F.2d
717, 723-724 (C.A.D.C.), cert. denied 351 U.S.
909. "The Board intends to keep pace, through in-
terpretation of the general terms embodied in Sec-
tion 8(d), to insure that bargaining for new forms
of `wages' or for hitherto undeveloped terms or
conditions of employment is not restricted." Mill
Floor Covering, Inc., supra, 136 NLRB at 772.15
Accordingly, I conclude that Respondent's plant
eating facilities (vending machines and cafeteria),
including the prices of meals served, are comprised
within its employees' conditions of employment
under Sections 9(a) and 8(d) of the Act.
" Cf. Craven, J., in Westinghouse Electric Corporation v N L R B, 369
F.2d 891 , 895 (C.A 4), later overruled 387 F.2d 542 ( see supra , fn. 26)
"The small amount of the increases in the price of coffee and hot dishes is
not the measure of the importance of the issue In determining whether a
matter is a mandatory subject of bargaining , whether much or little is in-
volved financially is not the controlling test . The underlying philosophy
of the labor Act is that discussion of issues between labor and management
serves as a valuable prophylactic by removing grievances, real or fancied,
and tends to improve and stablize labor relations . Experience teaches that
major interruptions may spring from seemingly trivial causes."
"The Board does, of course, draw a distinction between matters of
direct concern to employees and those "outside the employment relation-
ship altogether , or which , at best , touch it only peripherally ." Mill Floor
Covering , Inc , 136 NLRB at 772 Matters involving only' the relationship
of employers to one another" as a promotion fund , or only "the relation-
C.
547
Several additional contentions advanced by
Respondent and the Association require attention:
1. It is urged that to require Respondent to bar-
gain with Local 616 about food prices would en-
courage "piecemeal " bargaining and "lead to a
chaotic situation " since Local 616 represents only
"about 10 percent" of Respondent's employees. 6
The short answer to this is that "the definition of a
mandatory subject of collective bargaining does not
turn upon whether the subject under negotiation
has an impact beyond the confines of the bargain-
ing unit ." Westinghouse , supra, 156 NLRB at 1089,
citing Weyerhaeuser , supra , at 688 . See also
N.L.R.B . v. Smythe , 212 F.2d 664, 667 (C.A. 5).
Although it is not unusual for an employer whose
employees are represented by several unions to
negotiate or process grievances separately with
each union ( indeed , Respondent periodically does
just that with the 16 unions in its plant ), Respon-
dent is of course not precluded from joint discus-
sion with some or all unions . Even were it assumed
that separate discussion is essential ( which it is
not), "it is inconsistent with public policy to hold
that public duties ( e.g., the duty to bargain in good
faith ) may be set to naught because of alleged
private inconvenience .,'" (N.L.R.B. v. Davison, 318
F.2d 550, 558 (C.A. 4).)
2. Respondent's contention ( Br. p. 21) that a
"requirement that the Company negotiate" food
prices constitutes " interference with the Company's
contractual relationship with A.R.A.," is without
merit in fact or law. Respondent has absolute con-
trol over all the prices of all food in the vending
machines and cafeteria . A.R.A., which owns the
vending machines, is paid a percentage of Respon-
dent 's established prices . There is no showing of
whether or how any prices discussed with the
Union would affect any arrangement with A.R.A.
(other than to merely prospectively increase
A.R.A.'s future net return because of its percentage
arrangement ). In any event , were it to be assumed
that the negotiated price could have such effect
this would not legally justify a refusal to negotiate.31
Thus, for example , a negotiated wage increase
resulting in higher employer costs may require an
ship of an employer to the consuming public" as advertising ( id at 771), or
only "the relations between employees and their unions " as an employee
strike vote (N.L R B .v Wooster Division of Borg-Warner Corp, 356 U S
342, 350 ), lie outside the area of mandatory bargaining So also are matters
dealing with enforcement of collective agreements and with security
against contractual defaults which fix relations between employer and
union and not between employer and employees See Davison , et al d!bla
Arlington Asphalt Company , 136 NLRB 742, enfd 318 F 2d 550 (C.A 4),
Local 164 , Painters v NLRB , 293 F 2d 133 (C A D C), N L R B. v
Dalton Telephone Company, 187 F.2d 811,812 (C A 5)
'8 In rejecting the Union 's January 19, 1967, bargaining request , Respon-
dent indicated that this was one of its basic reasons for refusing to meet
with the Union
'r See Judge Craven 's opinion in Westinghouse , supra , on this point 369
F.2d at 897, the subsequent en banc decision did not reach this question.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer to obtain cheaper prices or more flexible
terms from his supplier or even compel him to seek
other suppliers. It cannot seriously be suggested
that such a possibility justifies refusal to bargain
upon a wage demand.
Furthermore, as is well understood, the obliga-
tion to bargain is not an obligation to agree. All
that the statute demands is that the Union be given
an opportunity to persuade Respondent that a price
increase is wholly or partially unwarranted.
Furthermore, as stated by the Board in
Westinghouse, "the nature of the restaurant busi-
ness-the constant and frequently sharp fluctuation
in the cost of food ingredients, the large number of
individual items sold, and changes in menu"-may
require less than usual "full-scale collective bar-
gaining" (District 50, U.M.W. v. N.L.R.B., 358
F.2d 234, 238 (C.A. 4)). In accord with the Board's
Westinghouse order, Respondent will be free to ini-
tially change prices, although it must still honor a
subsequent union request to discuss specific prices.
See Westinghouse, supra, 369 F.2d at 895, 897-998
(C.A. 4).
3. Finally, Respondent contends (Br. p. 20) that,
in any event, it fully complied with its statutory
duty to bargain by affording Local 616 "ample op-
portunity" to meet and discuss the price increases.
The contention is predicated on the claim that
Respondent met with representatives of several
unions in the plant (other than Local 616), five or
six times between March and September 1966 to
discuss complaints concerning A.R.A.'s vending
machine services, such as machine breakdowns and
quality and variety of foods supplied by Respon-
dent. It points out that on one occasion (September
21) there was also a discussion of a possible milk
price increase .311 While Food Service Manager Glass
testified that Local 616 officials failed to appear at
any of these meetings even though invited (orally
or in writing) to attend, Local officials (Hughes,
Barnes, Brown, and Humphrey-all General Coun-
sel's witnesses ) denied receiving any advance notifi-
cation of any meeting.
On the basis of the entire record, including the
comparative demeanor of witnesses, I credit the
testimony of General Counsel's witnesses on this
point . As to the alleged oral notices, Glass admitted
that he himself had not extended them, indicating
only that the A.R.A. service man was supposed to
have passed on such notices to Local 616 represen-
tatives. As to a written notice allegedly sent
through in-plant channels to Hughes, as president
of Local 616, to attend the September 21 meet-
ing,39 Respondent knew, or should have known,
that the claimed notice could not constitute effec-
tive notice to Local 616. Hughes was on extended
sick leave from July 15 to September 12, 1966, had
joined another union (Pressmen's Local 54), and
left his position as Local 616 president before Sep-
tember 21, and long before then (according to
Local 616 Secretary Brown's uncontradicted,
credited testimony), Brown advised it that all Local
616 mail be routed to him. As to one other written
notice for a June 23 meeting, allegedly also sent to
Hughes, the latter credibly testified that he not only
failed to receive it, but vividly recalled complaining
to the A.R.A. representative (McElfresh) about
being ignored, pointing out his interest in the
matter by reminding McElfresh that he represented
600 plant employees. McElfresh answered that
since "there were so many unions in there ... it
just slipped his mind."40 McElfresh did not con-
tradict Hughes' specific and detailed testimony on
this point. Moreover, it is clear from this record
that the notices that were given to several non-
Local 616 representatives, were extended on a
casual and random basis; Glass indicated that only
some of the 16 unions in the plant were selected for
the meetings , the selections having been made on
the basis of the Industrial Relations Department's
"contact" with complaining individuals.
Under all of the circumstances, I reject Respon-
dent's contention that Respondent gave Local 616
representatives adequate advance notice of food
service meetings or that Local 616 was otherwise
on notice thereof. I also reject Respondent's corol-
lary and related contention that by not attending
such meetings , Local 616 "waived" whatever right
it had to bargain concerning food price increases.41
In any event, even assuming , arguendo, that Local
616's failure to attend the September 21 meeting
(the last one at which proposed increases were
discussed), could be construed as a "waiver" of its
right to bargain on the November milk price in-
creases discussed at that meeting, such waiver
could not, and would not, defeat the Union's right
to negotiate on the cheeseburger and casserole
price increases, as to which Respondent does not
claim prior notice to or discussion with any union
representatives. The uncontradicted evidence
establishes Local 616 had complained about food
price changes and that it had requested discussion
thereon on at least three occasions; and that
Respondent either deferred, ignored, or rebuffed its
requests to negotiate. It is apparent from Director
of Industrial Relations O'Connor's statement at the
' Food Service Manager Glass characterized these meetings as "infor-
mal" discussions of "gripes," which "could be described " as "sort of a
sounding board for the Company "
'° The notice was allegedly placed in Glass' "out" box for messenger
delivery to a box where the "letterpress unions" (Local 616 and Local 54),
received mail Glass testified that he could not tell whether the notice was
actually received
'0 Hughes further testified that although McElfresh promised to notify
him of future meetings, he never received notification thereof
" Respondent's suggestion that the Union also waived the right to bar-
gain about food prices because it failed to raise the subject in the negotia-
tions preceding execution of the September 1966 collective agreement
(supra 11, B), is without ment "[T]here was no necessity for the Union to
seek from the Respondent a right it already had by statute , viz, to be bar-
gained with concerning a condition of employment " Westinghouse , supra,
156 NLRB at 1089 , fn 12 See also N L R.B v Allison & Company, 165
F 2d 766, 768 (C A. 6), cert denied 335 U S 814, N.L.R B. v Yawman
& Erbe Manufacturing Co , 187 F.2d 947, 949 (C.A 2)
McCALL CORPORATION
January 19 meeting that Respondent refused to
discuss the food price increases because it deemed
that Local 616, as representative of less than 10
percent of the plant employees, had no standing to
negotiate, as well as because it erroneously as-
sumed that the Union had had notice of prior food
service meetings. It is significant that even when the
Local 616 representative at the January 19 meeting
indicated willingness to negotiate jointly with other
unions, O'Connor temporized, asserting he was
"not prepared to answer that," and that he then re-
jected the Union's request to "negotiate ... over
food prices."
D.
Respondent relies heavily on the Fourth Circuit's
Westinghouse decision en banc, reversing the Board
and overruling that court's earlier panel decision
(supra, fn. 26). It cannot be gainsaid that the cur-
rent majority of that court now repudiates the
Board's view on what constitutes a bargainable
"term and condition of employment" as applied to
the particular facts of the Westinghouse case. The
new majority also questions the Board's view that
Congress used that phrase in its "broadest sense,"
and relying on Justice Stewart's concurring opinion
in Fibreboard, supra, 379 U.S. 203,42 concludes that
the phrase is restricted to "a limited category of is-
sues subject to compulsory bargaining." 387 F.2d
at 545. According to the Court, "the determination
of which decisions are mandatory bargaining sub-
jects must depend upon whether a given subject has
a significant or material relationship to wages,
hours, or other conditions of employment." (Id. at
547.)
As already noted (supra, fn. 26), being bound by
the Board's Westinghouse decision, I have applied
here the principles enunciated therein, as well as in
other Board precedents, many judicially approved.
However, despite the similarities between
Westinghouse and this case, there are substantial
differences, the most notable involving the question
of control over prices-the basic matter in dispute
here. Stressing most emphatically the minimal (if
not altogether nonexistent) employer control over
prices in Westinghouse, the court in its most recent
opinion states(387 F.2d 550):
The Board would order Westinghouse to
bargain with S.E.A. about prices charged by
the independent caterer with full knowledge
that Westinghouse cannot make an enforce-
able contract to change those prices since it
' In Fibreboard, the Supreme Court upheld the Board 's holding that sub-
contracting is a mandatory subject of bargaining Recognizing that subcon-
tracting is an inherent managerial function , the Board has held that an em-
ployer is required to bargain thereon only if the subcontracting has a sig-
nificantly adverse impact on unit employees . See Westinghouse Electric
Corporation, 150 NLRB 1574, Allied Chemical Corp, 151 NLRB 718, affil
sub nom , District 50, U M W, 358 F 2d 235 (C.A 4) In giving effect to
this distinction in the first Westinghouse court decision, Judge Craven
549
does not set them . This court long since de-
cided that the purpose of collective bargaining
is to produce an agreement and not merely to
engage in talk for the sake of going through the
motions . [ Quoting from N.L.R.B. v. Highland
Park Mfg. Co., 110 F.2d 632, 637 (C.A. 4).]
The Board calls upon Westinghouse to here
engage in that very form of fictional bargaining
condemned in the Highland Park case.
In another portion of the opinion, distinguishing
Weyerhaeuser, 87 NLRB 672 (where food pricing
was held bargainable), the court stresses, among
other things, that there "The employer set the
prices and provided the food. There was no third-
party independent contractor involved and the em-
ployer was in position to derive the profit, if any,
from this service." (346 F.2d 548.) The opinion
likewise distinguishes the Court's own Lehigh deci-
sion,"' where it held the employer's rental charges
to be bargainable, by emphasizing that "There the
employer owned the houses which were rented to
the employees and directly fixed and charged the
rentals." (Id. at 548.) In the instant case, too, the
employer (McCall) retains absolute control over
food prices. As in Lehigh and Weyerhaeuser, it
"directly fixed and charged" them and "was in a
position to derive the profit, if any, from this ser-
vice."
For all of the reasons stated, I find and conclude
that the vending machine (as well as cafeteria) food
prices, over which Respondent has at all times been
in complete control, constitute "conditions of em-
ployment" and bargainable matters. I further find
that Respondent's refusal to comply with Local
616's specific request to bargain about the vending
machine food price increases, after placing into ef-
fect such increases, constitutes a violation of Sec-
tion 8(a)(5) and (1) of the Act.
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. Local 616 is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material, Local 616 has been and
is the exclusive representative of all employees in
the following appropriate bargaining unit" within
the meaning of Section 9(a) of the Act:
noted , "Involved here [ i e., the cafeteria price increase] is no issue
touching managerial prerogatives which lie at ' the core of entrepreneurial
control,' Fibreboard Paper Products Corp v. N L R B, 379 U S. 203,
223 but an employee benefit, encompassed in the Labor Act's require-
ment to bargain collectively " 369 F 2d at 895
'-' N L R B v Lehigh Portland Cement Company, 205 F 2d 821 (C A 4)
44 As described in the collective agreement between Local 616 and
Respondent and as stipulated at the hearing
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees engaged in work as flymen or
inkmen in letterpress process pressrooms as
stipulated in the manning tables under article
XXIII of the collective agreement between
Respondent and the Union and which comes
under the jurisdiction of the International
Printing Pressmen and Assistants' Union of
North America, excluding all guards, profes-
sional employees and supervisors as defined in
the Act and all other employees.
4. By refusing, on and since January 19, 1967, to
bargain collectively with Local 616 as the exclusive
representative of its employees in the aforesaid bar-
gaining unit, concerning plant vending machine
food price changes, Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has unlawfully
refused to meet and bargain with Local 616 con-
cerning food price increases, I shall recommend
that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the
Act. In Westinghouse Electric Corporation, 156
NLRB 1080, the Board overruled the Trial Ex-
aminer's recommendation that Respondent be
directed to cease and desist from unlawfully putting
into effect price changes "without prior consulta-
tion" with the majority representative (156 NLRB
at 1092), holding that "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. (See also supra, C, 2.) Accordingly, the order
recommended herein will not require Respondent
"to bargain about every proposed price change in
food prices before putting such change in effect."
Ibid. The Recommended Order will require
Respondent to bargain on such price changes "only
after they are effectuated unilaterally and upon a
specific request of the union." Westinghouse Elec-
tric Corporation, supra, 369 F.2d at 895, 897-898.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, upon the entire record in
this case, and pursuant to Section 10(c) of the Act,
it is recommended that Respondent, McCall Cor-
poration, of Dayton, Ohio, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing, upon request, to bargain collec-
tively with Flymen and Inkmen Union of Dayton,
Local No. 616, International Printing Pressmen and
Assistants' Union of North America, AFL-CIO, as
the exclusive bargaining representative of all the
employees in the unit set forth in paragraph 3 of
the Conclusions of Law herein with respect to
changes in food prices at on-site food facilities, in-
cluding food vending machines.
(b) In any like or related manner interfering
with the efforts of the above-named labor organiza-
tion to bargain collectively on behalf of the em-
ployees in the above-described unit.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named labor organization, as the exclusive
representative of all its employees in the aforesaid
appropriate unit with respect to any changes, now
in effect or hereafter made or proposed, in food
prices charged employees at plant food facilities,
including food vending machines.
(b) Post at its plant in Dayton, Ohio, copies of
the attached notice marked "Appendix. "as Copies
of said notice,, to be furnished by the Regional
Director for Region 9, shall, after being duly signed
by an authorized representative of Respondent, be
posted by it 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 to insure
that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of receipt of
this Recommended Order, what steps have been
taken to comply herewith.46
" In the event that this Recommended Order is adopted by the Board,
the words "a Deectsion and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order "
'e In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board,
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify our employees that:
WE WILL NOT refuse , upon request , to bar-
gain collectively with Flymen and Inkmen
Union of Dayton , Local No. 616, International
Printing Pressmen and Assistants ' Union of
North America , AFL-CIO, as the exclusive
representative of all employees in the bargain-
ing unit described below with respect to any
McCALL CORPORATION
change in food prices charged at the eating
facilities on our premises, including food vend-
ing machines. The bargaining unit is:
All employees engaged in work as flymen
or inkmen in letterpress process press-
rooms as stipulated in the manning tables
under article XXIII of our collective
agreement with the Union and which
comes under the jurisdiction of the Inter-
national Printing Pressmen and Assistants'
Union of North America, excluding all
guards, professional employees and super-
visors as defined in the National Labor
Relations Act and all other employees.
Dated By
551
MCCALL CORPORATION
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Room 2407 Federal Ofice Building, 550
Main Street, Cincinnati, Ohio 45202, Telephone
684-3686.