Package Machinery Co.

National Labor Relations Board - Board Decisions

Jun 17, 1971

191 N.L.R.B. 268 (N.L.R.B. 1971)

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Package Machinery Company and Local 220, Interna-
tional Union of Electrical , Radio and Machine
Workers, AFL-CIO. Case 1-CA-7204
'June 17, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On January 6, 1971, Trial Examiner Herbert Silber-
man issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, Re-
spondent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Package Machinery Company, East Long-
meadow, Massachusetts, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner: Upon a charge
filed on July 17, 1970, by the above-named Union, a com-
plaint was issued on September 29, 1970, alleging that Pack-
age Machinery Company has engaged in and is engaging in
conduct constituting unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended. In substance, the complaint, as amended at
the hearing, alleges that the Company since February 18,
1970, unlawfully has refused to bargain with the Union as the
statutory representative of certain of its employees by refus-
ing to discuss an increase in prices for food sold in a cafeteria
and through vending machines on the Company's premises
but which are operated and serviced by an independent con-
tractor and by refusing to furnish the Union with certain
191 NLRB No. 60
requested information regarding the food service. Respond-
ent filed an answer generally denying that it has engaged in
the alleged unfair labor practices. A hearing in these proceed-
ings was held in Springfield, Massachusetts, on November 23,
1970. Subsequent to the hearing, the Respondent filed a brief
with me which has been carefully considered.
Upon the entire record in-the case, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Respondent, a Massachusetts corporation, is engaged in
the manufacture, sale, and distribution of packaging and in-
jection molding machinery at its plant located in East Long-
meadow, Massachusetts. In the course and conduct of its
business the Company's annual purchases of raw materials
from points outside the Commonwealth of Massachusetts
and its annual sales of finished products which are trans-
ported to customers located outside the Commonwealth of
Massachusetts each exceed $50,000. Respondent admits, and
I find, that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
During the times material hereto the Union has been the
collective-bargaining representative of the Company's factory
employees, more particularly described below, and the Union
and the Company are parties to a collective-bargaining agree-
ment entered into on October 1, 1969, and which expires on
September 30, 1972. The collective-bargaining agreement
contains no reference to food service for employees or to the
operation of the cafeteria and the food vending machines in
the Company's plant. Furthermore, there were no discussions
during the collective-bargaining negotiations leading to the
execution of the contract relating to these subjects.
This case is concerned with the Union's request that the
Company bargain with it concerning in-plant food prices and
related matters. The Company provides a cafeteria for its
employees which is located in the basement of the plant. The
cafeteria is equipped to furnish hot foods. However, hot foods
are available only to first-shift employees between the hours
of 11:30 a.m. and 12:30 p.m. In addition, vending machines
which dispense coffee, soda, sandwiches, including hamburg-
ers and frankfurters, ice cream, pastry, and candy are located
in the cafeteria and in several other places within the plant.
The cafeteria and vending machines are operated and ser-
viced by Servomation of New England, Inc., pursuant to the
terms of a 5-year contract between Servomation and the
Company which expires on September 30, 1971.'
I A copy of an agreement between Respondent and Servomation was
introduced in evidence. This instrument appears to be an amendment of an
earlier agreement and therefore does not fully reflect the entire contract
between Respondent and Servomation . The instrument in evidence makes
no mention of the prices which Servomation will charge for food. However,
paragraphs numbered 20 and 21 read
20. SERVOMATION has shown PACKAGE to PACKAGE'S satis-
faction that in order to provide the type of installation and service
required by PACKAGE, the costs and expenses to be borne by SERV-
OMATION under this agreement during the period specified in para-
graph 6 will exceed the income to be derived by SERVOMATION
under the terms of this agreement In consideration of the rendering by
SERVOMATION of the services required by PACKAGE for the
benefit of its employees , PACKAGE agrees to pay to SERVOMA-
TION the sum of seven hundred and forty-five dollars ($745.00) each
PACKAGE MACHINERY COMPANY
On February 18, 1970 , at a union-management meeting,
Thomas R. Garde, a vice president of the Company , informed
the union committee that the prices for coffee and soda would
be increased from 10 cents to 15 cents and that milk would
be served at the same price but in smaller containers . Richard
Brolund , the Union 's president, responded that the Union
"would be willing to sit down and discuss it with the com-
pany." However , Garde answered that " [t]here was no dis-
cussion necessary because [the Union] had nothing to say
about it [the increases in the prices of food]." In accordance
with Garde 's advice the prices of various food items were
increased on March 16, 1970.
On May 27, 1970, the Union sent the following letter to the
Company:
Subject : Vending Machines and Cafeteria Profits
This will serve as notice that the Union at its next con-
tract negotiations intends to bargain for the profits
reaped from the food services now being offered in the
plant.
We are well aware that the contract with the present
vendor expires before the Union contract expires, and we
think that a representative of the Union should be
present when the contract talks with the vendor begin.
We are hereby requesting a copy of the present contract
with the vendor as well as a notice of current price
increases . Also, we would like any other pertinent infor-
mation that would have any bearing on the bargaining.
The Union is willing to discuss this matter at the Union
Management meeting scheduled tentatively for June 10,
1970.
The Company did not respond to the letter . On May 29,
1970, Brolund asked Walter Fish , the Company's industrial
relations director , if he had a reply to the Union's letter of
May 27. Fish informed Brolund that "the answer was that
the company did not feel that this was a subject for bargain-
ing." In a later conversation with Brolund , on June 2, Fish
repeated "that the company did not feel that [the Union] had
a bargaining interest and there would be no written answer
[to his letter]."
The Union, on June 8, 1970 , wrote the Company a second
letter substantially identical to its earlier letter of May 27.
There was no reply and , on June 15, Brolund asked Fish if
the Company intended to answer the letter . Fish responded,
"[N]o, the company did not feel this was subject to bargain-
ing."
The Union sent to the Company on June 22 the following
letter:
The Union desires to begin negotiations with the
Company concerning food and beverage prices in the
Cafeteria as well as the profits from the operation of the
Cafeteria.
Additionally, as requested by our letters of May 27
and June 8 , 1970, we request that the company immedi-
ately furnish the undersigned with a copy of the present
contract with the Cafeteria vending company in order to
prepare for collective bargaining. ^
Please contact the undersigned forthwith in order to
set dates and times for negotiation on the above.
The Company did not reply to this letter . The Company has
not, in response to any of the Union's requests , furnished the
month during the period specified in paragraph 6.
21 In the event that PACKAGE requests SERVOMATION to furnish
different or additional services than those presently contemplated dur-
mg the period specified in paragraph 6, the monthly payment by PACK-
AGE specified in paragraph 20 may be adjusted accordingly by mutual
agreement , evidenced by amendment of this agreement
269
Union with a copy of the contract between itself and Servo-
mation or with a list of the price increases.
The Company employs a total of 900 persons at its East
Longmeadow plant, of whom about 480 are included within
the bargaining unit represented by the Union. The Company
operates on a three-shift basis. Of the employees in the bar-
gaining unit approximately 371 work on the first shift, 94 on
the second shift, and 15 on the third shift. The normal lunch
period for the first and second shifts is 30 minutes and for the
third shift it is 20 minutes. A limited number of employees
on the first two shifts are allowed only 20 minutes for lunch.
It is estimated that about 50 percent of the 371 employees in
the bargaining unit on the first shift eat regularly in the
Company's cafeteria and about 70 of these employees buy hot
meals. About 98 percent of the employees in the plant use the
vending machines. Employees may leave the plant for lunch
if they desire. It requires an automobile to reach any eating
place within the area. However, more than 90 percent of the
employees use automobiles to go to and from work. The
following are the eating establishments accessible to the em-
ployees together with their distances from the plant and their
seating capacities:
Friendly Ice Cream-1.7 miles-seats 100
Pizza Shop-.9 miles-seats 32
Big Ben-1.3 miles-seats 30 (closes 5 p.m.)
Casa Seven-1.0 mile-seats 100
Country Corner-.4 miles-seats 55 (closes 5 p.m.)
Koffee Time-1.2 miles-seats 29 (closes 4 p.m.)'
Other business establishments in the area employ in excess of
2,000 persons and it must be assumed that some of them
patronize the listed eating establishments.
The principles enunciated in Westinghouse Electric Corpo-
ration' and McCall Corporation' govern and are applicable
here. The differences in the facts of the instant case from those
in the Westinghouse and McCall cases are not sufficient to
furnish any legal distinction.
Respondent also argues that the Union's demand for
negotiations was deficient in that the Union sought to bargain
about "profits." While the Union's letters may have been
inartistically drafted, the record is clear that the Union
sought to bargain with the Respondent about the prices
charged for food served to the employees in the cafeteria and
through the vending machines and that the Respondent
refused, taking the position that the Union had no bargaining
interest in the subject. Thus, on February 18, when the Re-
spondent first notified the Union that the prices of certain
food items would be increased, Union President Brolund ex-
pressed a desire to discuss the subject with the Company but
the response given was that the Union had nothing to say
about the increases in the food prices. This is a position which
the Company's industrial relations relations manager reiter-
ated to the Union's president on June 2 and again on June 15.
Any question as to whether the Union wished to bargain
about food prices which might have arisen from the language
of the Union's letters of May 27 and June 8 was dispelled by
the Union's letter of June 22 in which it stated that "The
Union desires to begin negotiations with the Company con-
cerning food and beverage prices in the Cafeteria.. . "'
' About 1.7 miles from the plant there is also a recently opened Chinese-
style restaurant, The Hukelau It is uncertain whether this restaurant is open
for business during the noon hour.
3 156 NLRB 1080, affd. 369 F 2d 891 (C A 4), reversed on review by the
court sitting en banc 387 F.2d 542 (C.A 4).
4 172 NLRB No. 55, enforcement denied 432 F 2d 187 (C A. 4)
' The profit the Company derives from the operation of the cafeteria is
not a mandatory subject for collective bargaining. However, the Union's
request to bargain about such subject does not vitiate or nullify its valid
requests to bargain about food and beverage prices.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Respondent has unlawfully refused to bargain
collectively with the Union about the prices charged em-
ployees for food and beverages which are sold to them in the
cafeteria and through vending machines at the plant. I further
find that Respondent also has violated its collective-bargain-
ing obligations by failing to furnish the Union with the infor-
mation requested by the Union relating to the same subject;
namely, a copy of the contract between the Company and
Servomation and a list of the current price increases. Such
information is material and necessary in order for the Union
to bargain intelligently and effectively with the Company
concerning the prices charged for food offered for sale to the
employees in the plant.
CONCLUSIONS OF LAW
1. At all times material, Local 220, International Union of
Electrical, Radio and Machine Workers, AFL-CIO, has been
and is the exclusive representative of all the employees in the
following appropriate bargaining unit within the meaning of
Section 9(a) of the Act:
All factory (production, non-production, time checking
and shop planning) employees excluding all office em-
ployees, executives, standards departments' employees,
engineers, watchmen, guards, recognized foremen and
all other supervisors as defined in Section 2(11) of the
Act.
2. By refusing on and since February 18, 1970, to bargain
collectively with the Union as the exclusive representative of
its employees in the aforesaid bargaining unit concerning
prices and price changes for food items offered for sale to
employees in the cafeteria and through vending machines
located on the Company's plant premises and to furnish the
Union with a list of the increases in food prices and a copy
of the contract between the Company and Servomation of
New England, Inc., Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended 6
ORDER
Respondent , Package Machinery Company, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing, upon request, to bargain collectively with
Local 220, International Union of Electrical , Radio and Ma-
chine Workers, AFL-CIO, as the exclusive bargaining repre-
sentative of all the employees in the unit set forth above with
respect to food prices and changes in food prices offered for
sale to employees at on -site food facilities , including food
vending machines.
6 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 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.
(b) Refusing, upon request, to furnish said collective-bar-
gaining representative with prices and changes in prices for
food items offered for sale at such on-site food facilities and
copies of any applicable contracts between the Company and
other business establishments which affect the establishment
of such food prices.
(c) In any like or related manner interfering with the efforts
of the above-named labor organization to bargain collectively
on behalf of the employees in the above-described unit.
2. Take the following affirmative action necessary to effec-
tuate 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 its aforesaid appropriate unit with respect
to the prices and any changes in the prices of food items
offered for sale to employees at on-site food facilities, includ-
ing food vending machines.
(b) Upon request, furnish the above-named labor organiza-
tion a list of prices charged, or proposed to be charged, em-
ployees at on-site food facilities, including food vending ma-
chines, and copies of applicable contracts affecting such
prices, including copies of the contract presently in existence
between the Company and Servomation of New England,
Inc.
(c) Post at its plant in East Longmeadow, Massachusetts,
copies of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's representa-
tive, shall 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 em-
ployees 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 1, in writing,
within 20 days from the receipt,of this Decision, what steps
have been taken to comply herewith.'
' In the event that the Board's 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD."
8 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read- "Notify
the Regional Director for Region 1, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse, upon request, to bargain collec-
tively with Local 220, International Union of Electrical,
Radio and Machine Workers, AFL-CIO, as the exclu-
sive representative of all employees in the bargaining
unit described below with respect to food prices and
changes in food prices offered for sale to our employees
at the eating facilities on our premises, including food
vending machines. The bargaining unit is:
All factory (production, non-production, time
checking and shop planning) employees excluding
all office employees, executives, standards depart-
ments' employees, engineers, watchmen, guards,
recognized foremen and all other supervisors as
defined in Section 2(11) of the Act.
PACKAGE MACHINERY COMPANY
WE WILL NOT refuse, upon request , to furnish the
above-named labor organization with lists of prices, lists
of changes in prices , and proposed changes in prices
charged at the eating facilities on our premises and also
copies of contracts between ourselves and other business
establishments which affect the prices of food charged at
such eating facilities.
WE WILL NOT in any like or related manner interfere
with the efforts of the above-named labor organization
to bargain collectively with us on behalf of the employees
in the above-described unit.
Dated By
271
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, Bulfinch
Building, 7th Floor, 15 New Cardon Street, Boston , Massa-
chusetts 02114 , Telephone 617-223-3330.
PACKAGE
MACHINERY COMPANY
(Employer)