Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Jan 21, 1966

156 N.L.R.B. 1080 (N.L.R.B. 1966)

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany wants it; the Company pays all costs of keeping the boat in repair
and makes all decisions concerning when and where major repairs are
to be made; the Company carries indemnity insurance which protects
the captain as well as his crew; and the captain is prohibited from using
the boats for any purpose other than clamming.
In view of the foregoing and the record as a whole, we find that the
captains are not independent contractors but are supervisors and the
crew members are employees of the Employer.- We therefore find that
a question affecting commerce exists concerning the representation of
certain employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(c) of the Act:
All crew members employed aboard clamming vessels owned by the
Employer, excluding captains.
[Text of Direction of Election omitted from publication.]
6 East Coast Trawling & Dock Company, Inc., 153 NLRB 1354.; William P. Riggin
& Son, Inc., 153 NLRB 1358. To the extent that the Snow case, footnote 2, supra, is in-
consistent with this finding, it is hereby overruled.
Westinghouse Electric Corporation and Salaried Employees As-
sociation of the Baltimore Division, Federation of Westing-
house Independent Salaried Unions . Case No. 5-CA-3033.
January 21, 1966
DECISION AND ORDER
On August 11, 1965, Trial Examiner Harry H. Luskin issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Decision and a support-
ing brief.
The National Labor Relations 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 con-
sidered the Trial Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, with the following
modifications.
156 NLRB No. 96.
WESTINGHOUSE ELECTRIC CORPORATION 1081
The Trial Examiner found that Respondent had violated Section
8(a) (5) and (1) of the Act by failing to notify the Union of proposed
changes in food prices charged in the cafeterias and by refusing upon
request to bargain concerning such changes. We agree with the Trial
Examiner's finding of an 8 (a) (5) violation, but we base this only upon
Respondent's rejection of the Union's request for bargaining about the
price changes. Although we agree with the Trial Examiner that in
the circumstances of this case the subject of cafeteria food prices was
a mandatory subject of bargaining, it does not follow that Respondent
was required to bargain about every proposed change in food prices
before putting such change in effect. Because of the nature of the res-
taurant business-the constant and frequently sharp fluctuation in the
cost of food ingredients, the large number of individual items sold, and
changes in menus-it is impracticable to require consultation with a
union before each change in the price of any of the products sold. It
is sufficient compliance with the statutory mandate, we believe, if man-
agement honors a specific union request for bargaining about changes
made or to be made. Here, however, Respondent rejected the Union's
request for bargaining about food price changes. By so doing, we find
Respondent unlawfully refused to bargain with the Union.
The dissent does not deal realistically with the problem posed by
this case. The present dispute is not limited to the price of coffee, as the
dissent implies, but extends to all prices charged in the cafeterias.
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 employ-
ees as an inducement to work for Respondent. They are thus condi-
tions of employment. The problem is as simple as that. It is no answer
to say that employees 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 employees can go
elsewhere if they do not like Respondent's conditions of employment.
The fact is that a considerable number of employees do not wish to
bring their lunches from home, and if they had to do so would presum-
ably look for employment elsewhere. Such employees are in substance
and effect captive customers of the on-site cafeterias, even though
Respondent chooses to have an outside company operate the cafeterias.
Although the dissent speaks of leaving price increases for food to the
"mercies of the voluntary action of the market place," it overlooks that
because of physical location and the requirements of the job, there is no
market place and no competition. We would note that the present deci-
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion. does not require either Respondent or the cafeteria operator to
rescind price increases, but only that they meet with the Union, when
requested, to discuss increases in a good-faith effort to reach agreement.
Experience tells us that disputes over plant conditions that may
appear of minor significance to us, such as the length of relief periods,
the schedule of prices charged for lunches, etc., can lead to the disrup-
tion 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.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Amended paragraphs 1(a) and 2 (a) to read:
["1 (a) Refusing, upon request, to bargain collectively with Salaried
Employees Association of the Baltimore Division, Federation of West-
inghouse Independent Salaried Unions, as the exclusive bargaining
representative of all the employees included in the units specifically set
forth in paragraph 3 of the Conclusions of Law herein with respect to
the reasonableness of proposed changes in food prices at the Respond-
ent's cafeterias."
["2(a) Upon request, bargain collectively with Salaried Employees
Association of the Baltimore Division, Federation of Westinghouse
Independent Salaried Unions, as the exclusive representative of all its
employees in the aforesaid appropriate units with respect to the rea-
sonableness of any changes, now in effect or hereafter proposed, in food
prices charged employees at its cafeterias."
[2. Delete paragraph 1(b) and redesignate paragraph 1(c) as 1(b).
[3. Amend the first indented paragraph of the notice to read:
[WE WILL NOT refuse, upon request, to bargain collectively with
Salaried Employees Association of the Baltimore Division, Fed-
eration of Westinghouse Independent Salaried Unions, as the
exclusive representative of all the employees in the bargaining
units described herein with respect to the reasonableness of any
changes in food prices charged at our cafeterias.
[4. Delete the second indented paragraph of the notice.]
MEMBERS JENIKINS and ZAGORIA, dissenting :
Collective bargaining is healthy, but if bargaining over a penny-a-
cup increase in coffee becomes mandatory to the menu on the bargain-
ing table, the result is liable to be acute indigestion. The statute
requires that an employer bargain over wages, hours, and conditions of
employment. Here, an employer has voluntarily provided cafeterias
WESTINGHOUSE ELECTRIC CORPORATION 1083
for his employees. An independent contractor furnishes the food and
sets the prices. Employees may also bring their lunches and eat them
in the cafeterias. There is no compulsion to buy or to bring lunches;
indeed, only 40 to 45 percent of the work force makes use of the cafe-
terias. In this case, a union, one of three in the plants, proposes that
the prices, including the most recent increase of a penny-a-cup on carry-
out coffee and 5 cents on hot items, be the subject of mandatory bargain-
ing. Since there is joint, although limited use, of the cafeterias, the
bargaining over the prices on each item on the menu by each of the
three unions has the potential for extensive preemption of manage-
ment and employee time. And if this position is sustained, will the
next step require bargaining over color of restroom walls, adequacy of
pool table equipment, and the like? The matters of wages, hours,
working conditions, job security, and the like are deserving of the
status of mandatory collective bargaining; penny-a-cup increases in
carryout coffee are better left to the mercies of the voluntary action
of the market place. When the cash register stops ringing, the price
of coffee will begin descending.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Harry H. Kuskin at Baltimore,
Maryland, on June 10, 1965, pursuant to a charge filed on January 19, 1965, and a
complaint issued on April 8, 1965, as thereafter amended at the hearing. It presents
the question of whether Westinghouse Electric Corporation, herein called the
Respondent, has since on or about January 9, 1965, refused to bargain with Salaried
Employees Association of the Baltimore Division, Federation of Westinghouse Inde-
pendent Salaried Unions, herein called the Union, as the exclusive bargaining repre-
sentative of the Respondent's employees in a number of appropriate units with respect
to changes in the prices of food served by Baltimore Catering Company, herein
called the Caterer, on the Respondent's premises to the Respondent's employees. In
substance, the Respondent admits the allegations of the complaint pertaining to
commerce and status of the Union as a labor organization but denies that it has
violated the Act by its refusal to bargain, allegedly because it has no legal obligation
to bargain with the Union as to this matter.
Upon the entire record,1 which consists mostly of undisputed testimony, and after
due consideration of the brief filed by the Respondent and the letter, in lieu of brief,
filed by General Counsel, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and I find, that: (1) the Respondent, a Pennsylvania
corporation with various installations throughout the United States, operates at
several locations in Baltimore, Maryland, where it is engaged in the research, manu-
facture, and distribution of electrical products, that it annually ships in excess of
$50,000 worth of products outside the State of Maryland, and that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act; and (2) the Union
is a labor organization within the meaning of Section 2(5) of the Act.
'As corrected by my order correcting transcript dated July 15, 1965. Since these
corrections Include the ones appearing in the Respondent's July 8, 1965, motion to correct
the transcript, and since these corrections, like the other corrections, are unopposed, the
motion is hereby granted.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE UNFAIR LABOR PRACTICES
The Existing Contractual Relationships
The Respondent and Federation of Westinghouse Independent Salaried Unions
are currently parties to a national agreement by which the Respondent "recognizes
the Federation on behalf of and in conjunction with its Affiliates for those units
where the Federation or an Affiliate, respectively, through a National Labor Rela-
tions Board certification has been lawfully designated as the exclusive bargaining
agent." The Union is an affiliate of the Federation. The contract details in its
appendix the various units in the Baltimore, Maryland, area in which the Union is
the bargaining representative. These include the units involved herein at the Friend-
ship site, the Lansdowne site, and the Parker Road site. These three sites each house
a cafeteria. The cafeterias are currently being operated by Baltimore Catering
Company pursuant to a renewable 1-year contract with the Respondent.
In broad outline, the latter agreement provides that the Respondent, for the com-
pensation of $1 per year, is to furnish the space and the utensils and basic equipment
for the cafeterias and to maintain the capital equipment. The caterer, in turn, agrees
to furnish and pay for all the foodstuff and operating supplies, to maintain the inven-
tory and replace lost, damaged, or missing items, to maintain the cafeteria premises,
to furnish all personnel properly to operate the cafeterias,2 to comply with appli-
cable laws and ordinances, to provide various types of insurance coverage, and to
refrain from using the name "Westinghouse" or "Westinghouse Cafeteria" in the
conduct of the business of these cafeterias. In addition, the contract contains the
following provisions which are of special significance here: (1) "the Caterer shall
provide all meals and foodstuffs of good quality, subject at all times to the approval
of the Manager of [the Respondent] at the premises ...:.; (2) "the quality and prices
of the meals served . . . shall at all times be reasonable"; (3) the Caterer "shall
maintain accounting records ... which shall be subject to periodical audit at the
discretion of [the Respondent] and daily deposit slips in duplicate shall be furnished
each day to [the Respondent]"; (4) a monthly record of all sales shall be submitted
to the Respondent; (5) the caterer acts and shall act at all times solely as an inde-
pendent contractor and nothing in the agreement shall be construed in such a manner
as to create the relationship of partners, or of joint adventurers or of agency between
the parties; and (6) the contract is terminable by either party upon 60 days' written
notice to the other party. It appears from the record herein that the contract is
being administered as written.
The caterer operates commercial cafeterias for other employers, as well, and there
is no contention here that there is a relationship of partnership, joint adventurer, or
agency between it and the Respondent. The employees at the three cafeterias are
currently represented by the International Union of Electrical and Radio and Machine
Workers, herein called the IUE, pursuant to a Board certification dated October 19,
1964, in Case No 5-RC-4457.3
The Extent of Use by the Employees of the In-Plant Cafeterias and Off-The -Premises
Eating Places
These cafeteria facilities are provided for all the employees at the plants compris-
ing the Respondent's defense center. The plants encompass the aerospace division
(formerly the air arm division), the surface division, and the underseas division. The
latter includes separate locations at Lansdowne and Parker Road. The services
department is also part of this complex of plants. The aerospace division, surface
division, and services building are located at Friendship Airport and, though in sepa-
rate buildings, are all interconnected. The underseas division, Lansdowne operation,
is 13 miles away from the Friendship site, and the Parker Road operation is about
5 miles from the Lansdowne operation and 13 miles from the Friendship site. About
the time of the hearing, there were 3,706 employees at Aerospace, of whom 1,066
were represented by the Union, 1,168 were represented by Local 1805 of the Inter-
national Brotherhood of Electrical Workers, AFL-CIO, herein called IBEW Local
2 Section 11 of the agreement provides, in part, that all personnel employed by the
caterer shall be subject to the approval of the Respondent and to the approval of the
officers of the United States of America in charge of internal security matters. The
Respondent argues in Its brief that this concerns only approval from a security and health
standpoint . However , since I do not rest any findings herein on this section of the
agreement , I need not , and do not , interpret it
8 The caterer and the IUE entered into an agreement shortly after the certification.
The Respondent "did not in any way handle negotiations for this agreement."
WESTINGHOUSE ELECTRIC CORPORATION 1085
1805, and 1,095 exempt employees and 377 management employees were unrepre-
sented. The surface division had 1,705 employees, of whom 496 were represented
by the Union, 333 were represented by IUE Local 130, and 655 exempt employees and
221 management employees were unrepresented. The underseas division, including
both locations, had 980 employees, of whom 496 were represented by the Union, 333
employees were represented by IUE Local 130, and 333 exempt employees and 116
management employees were unrepresented. The services building had 1,174 employ-
ees, of whom 644 were represented by the Union, some of the 263 hourly employees
were represented by IBEW Local 1805, some were unrepresented along with 138
exempt employees and 129 management employees.
The cafeteria at Friendship has been in operation since 1952, the one at Lansdowne
for at least 20 years, and the one at Parker Road for about 3 years.4 As already
noted, the facilities of the cafeterias are available to all persons employed at the three
locations. Approximately 200 military and outside representatives who are perma-
nently stationed at the Friendship site also use the cafeteria located there. The cafe-
teria is also available to visitors who happen to be in the building under employee
escort. There is no requirement that employees purchase meals at these cafeterias
and, according to Cromwell, the Respondent's industrial relations director, a recent
survey reveals that between 40 and 45 percent of the employees utilized the cafe-
terias. Employee James L. Hare, the president of the Union, testified that employees
may purchase coffee and doughnuts from chuckwagons on the Respondent's parking
lots on their way to work and that the automatic vending machines inside the plant
dispense soft drinks but not coffee; he did not know whether sandwiches and other
foods could be purchased from the chuckwagons. Some employees at all these loca-
tions bring their lunches and eat them at their desks or work stations,5 on patios of
the plants, or in an area reserved for them in the cafeterias.
The record shows the following with respect to the time allotted to employees for
their meals and the location of other cafeterias and eating facilities: The uncontro-
verted testimony of Hare is to the effect that the employees on the 7 a.m. shift and
other shifts, up to and including the 8 a.m. shift, have 30 minutes for lunch; employ-
ees on shifts starting at 8:15 and 8:30 a m. have 45 minutes for that purpose; and
employees on the afternoon shifts beginning at 3 and 4 o'clock have 30 minutes for
their mealtime. As to the location of eating places in the vicinity, Hare testified that
the nearest one to the Friendship site is about a mile away and that his personal count
of seats showed that it could accommodate between 80 and 90 individuals; that the
nearest eating facility to the Lansdowne site is about three-quarters of a mile away
and could, according to his count, accommodate 64 employees; and that the 2 closest
eating facilities in the Parker Road site would be about 1 mile away, that one such
facility was open during the noon hour and could accommodate 32 people and that
a second facility would be available during the evening and could accommodate an
additional 50 people. Although Hare testified, on cross-examination, that he could
not discount the possibility that there were other eating establishments in the vicinity
of these three sites, he qualified this by saying that he was not aware of any place
where he would be willing to eat, and the Respondent introduced no evidence on the
availability of other eating establishments. I am therefore satisfied, and find, that
the number and size of the outside eating places available to the employees working
at these sites are substantially as Hare testified.
With respect to access to these outside eating places from the plant herein the fol-
lowing appears: According to Hare, the employees get to work by car, some of them
going by car pools,6 and there is no commercial transportation service. Cromwell's
testimony controverted this. As to the Friendship Airport site, he stated that there
was a bus to the airport about once an hour and that the bus schedule is heavier at
the time of the day when the employees are coming to and leaving work. It is there-
fore clear from Cromwell's testimony as to the bus schedule that the commercial
transportation at the Friendship site would not afford employees ready access to these
outside eating places.? In the absence of any testimony by Cromwell as to the bus
schedules at the Lansdowne and Parker Road sites, there is no warrant for concluding
that the situation is any different at these two sites.
* The Respondent states in its brief that "each of these cafeterias has been in existence
from the beginning of the separate plants."
5 In some production areas in the production department , employees cannot eat at their
workplace. They are asked to eat in the cafeteria.
6 Hare testified that "most every employee drives himself to work."
7 In crediting Cromwell, as I do here, I do not regard his testimony as casting any
doubt on Hare's other testimony, which I also credit on the basis of my observation of
Hare and the fact that such other testimony is uncontradicted
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is patent from all the foregoing, and I find, that the employees are compelled by
existing circumstances to do their eating on the premises. This is so because off-the-
premises eating is fraught with so many obstacles as to make it impossible for employ-
ees to secure a meal and return within the time allotted to them. Thus, some employ-
ees are given a half hour and others three-quarters of an hour for their meal, the
nearest off-the-premises eating facilities are about a mile away, there is, considering
the very large number of employees at these sites, insufficient seating capacity at the
available places, there is a lack of ready access to such places by commercial trans-
portation, and, were private automobiles to be used, there would be the inescapable
time factor incident to getting to and from the company parking lots, traversing the
public highway, finding parking space, and then parking at or near the eating place.
It is, of course, arguable that employees are not compelled to purchase food in the
cafeterias because they can bring their lunches each day from home. However, I
find such argument unpersuasive. In the first place, it negates the very purpose of
the cafeteria. Secondly, the realities are that, apart from any preference employees
might have against bringing their lunches, some employees would find it unfeasible
or burdensome to do so.s
The October 1964 Increase in Cafeteria Prices
So far as appears, the first complaint by the Union about cafeteria prices occurred
in October 1964. Hare testified as follows in reference to this complaint: When the
increase was announced on or about October 5, he approached James Wallace, the
Respondent's assistant manager of industrial relations, and asked for a meeting to
discuss price changes but the request was denied. A telegram was thereafter sent to
Buford M. Brown, vice president of the Respondent, asking for a meeting "to dis-
cuss conditions that existed in the cafeteria, generally." In response thereto, a meet-
ing took place in the office of Roy D. Cromwell, the Respondent's industrial rela-
tions representative for the services systems and service buildings. Present, in
addition to Hare and his committee and Cromwell, were M. E. Whelpley, the owner
of the Baltimore Catering Company, a Mr. Anderson on behalf of the caterer, and a
Mr. White, together with a committee, on behalf of the TUE. At this meeting, food
prices were discussed. The "discussion was with Whelpley and Anderson"; Crom-
well, who was in and out of the room from time to time, was also "involved in the
discussion." Cromwell said that he was in no position to bargain about prices. The
meeting was continued, by agreement, to October 15. At that time, there was no
further exploration of prices. Cromwell was present throughout this meeting. The
Union was told by Cromwell, on the one hand, that the Respondent "would abso-
lutely refuse to negotiate with [it] on cafeteria prices," that he had no authority to
bargain with the Union on prices and that since prices were established by the caterer
he had no control over prices. The Union was told by Anderson, on the other hand,
that "any consideration given to the previous discussion on the 13th was down the
drain" and that "they were going to stick to the announced price increase."
Cromwell's testimony differs in these following respects from that of Hare: At the
October 13 meeting, he told those present that the caterer was an independent con-
tractor and "if they wished to discuss specific prices of food they would have to dis-
cuss it with the Caterer and see if they could make such arrangement and that [he]
was there as an observer for the [Respondent]," that prices were discussed in his
presence, but he took no part in the discussion. At the October 15 meeting there
were discussions concerning food prices but he took no part in them, making it clear
that he was in no position to negotiate concerning food prices.
I find it unnecessary to reconcile these differences and to determine whose testimony
more accurately reflects the content of these meetings. To the extent that their testi-
mony is similar it indicates, and I find, that the Respondent sought to resolve the
complaint by the Union as to Cafeteria prices by promoting discussions, in its pres-
ence, between the unions concerned and the caterer and that the Respondent took
the position then, as it does now, that since the caterer rather than the Respondent
controlled prices, the Respondent had no obligation to bargain respecting prices, and
to bargain would be futile.
BI find it unnecessary to concern myself with the extent to which the furnishing of
meals in the cafeterias constitutes , for those who are compelled to eat in the cafeteria,
an "emolument of value" and hence a part of wages.
WESTINGHOUSE ELECTRIC CORPORATION 1087
The Respondent 's October 18, 1964, Letter to its Employees on its Policy
Relating to Cafeterias
Shortly after the two meetings discussed above, the Respondent mailed a letter
dated October 16, 1964 , and bearing the signature of Buford Brown to all the Respond-
ent's employees , detailing its policy respecting cafeterias . As the letter tends to
amplify in some respects the position theretofore taken by Cromwell and appears
to reflect the Respondent 's current policy, its contents are set forth herein, in full:
There has been a great deal of misinformation given out about our cafeteria.
I would like to tell you what our policy is.
We are anxious to eliminate eating in the shop and office areas where cleanli-
ness is such an important factor in satisfying our customers . Therefore , we pro-
vide cafeteria facilities for the convenience of our employees-whether you bring
your lunch or purchase it at the counter . This choice is your own and we have
no interest one way or the other whether you buy your lunch or bring it. We
provide the facilities but in order to take care of serving beverages and food,
we entered into a contract with the Baltimore Catering Company to perform this
service. We provide all the facilities and they are responsible for the remainder.
Their operations are monitored by us to be sure that employees get good service,
quality food and at prices as reasonable as possible.
We periodically review our cafeteria prices, and a recent survey shows that
they are no higher than other non -subsidized industrial cafeteria prices in the
Baltimore area. In order to monitor the cafeteria prices, we audit the costs for
food and labor incurred by the Baltimore Catering Company so that we can have
a basis for determining the reasonableness of their prices . These prices, of
course, are set with due consideration for food and labor costs and are commen-
surate for the services rendered. As an example of this, prices in our visitors din-
ing room are set at a higher rate in order to take care of additional service pro-
vided for our customers and management.
We have always insisted on serving food of the highest quality, at prices as rea-
sonable as possible. We believe that our cafeteria will stand a test of comparison
with any industrial cafeteria in the area.
The Manner of Effectuating Price Changes
Cromwell testified that the Respondent is not interested in determining the actual
prices charged for the individual items but that "we do have in our contract that we
feel they should be reasonable prices and we are primarily concerned that the
request for increases in prices are justified on the basis of piece cost ." In the past,
increases in food prices have occurred at 11/2-year intervals . According to Cromwell,
the practice has been for the caterer to tell the Respondent in advance of an intended
price change . He viewed this step by the caterer as good business practice because
the contract is terminable on 60 days ' notice, and not to tell the Respondent would be
to risk cancellation . He testified further that there have been discussions about prices
and that the Respondent feels that it should tell the caterer fully when "we don't feel
there is a justification for [the increase ]." There have , however , been no instances in
which the Respondent has caused the caterer to change or modify its intended price
increase. The changes in food prices are effected by the posting on the Respondent's
bulletin boards of a notice from the caterer to all employees that prices are being
changed as of a subsequent date. The posting is handled by office personnel of the
Respondent in the same manner as notices of union meetings are handled , it being
the Respondent 's practice to control the posting through its industrial relations office.
The Respondent does not, at anytime, notify the Union on its own of the projected
price changes.
The January 1965 Increase
Food prices in the cafeterias were increased again in January 1965 . There was a
5-cent increase in the price of each of the hot food entrees and a 1-cent increase in
the price of carry-out coffee. A notice under the caterer 's letterhead announcing
prospectively these price changes, as well as changes in menu, was posted on the
Respondent 's bulletin boards in the usual manner. Shortly after reading the notice,
Hare, in the company of Union Vice President Suroko, discussed the matter with
Wallace and asked him to negotiate with them "concerning this increase in food
prices." Hare testified that he approached Wallace because he is the one normally
consulted on any problem arising in the administration of the Union's contract.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallace replied that "he could not negotiate with [them] anything that he had no
control over, that he had no control whatsoever over this increase in the cafeteria
prices." Whereupon, the Union filed the instant charge.
Conclusions as to the Alleged Refusal to Bargain
The complaint alleges, the answer admits, and I find that tht following units repre-
sented by the Union at the Friendship, Lansdowne, and Parker Road sites are appro-
priate for collective-bargaining purposes:
All salaried, technical , and clerical employees of the Resopndent at the ordinance
department , Lansdowne , Maryland, plant, excluding all professional employees, all
shop clerical employees , all inspectors and testers , guards, and supervisors as defined
in the Act.
All clerical and technical employees of the Respondent in its electronics division
at Friendship International Airport, Baltimore , Maryland, all clerical and technical
employees employed by the Respondent at its Parker Road, Baltimore, Maryland,
plant, all clerical and technical employees including utility men located at Morrell
Park, 2940 Washington Boulevard , working under the direction of the engineering
department of the electronics division located at Parker Road, excluding all employees
of the engineering and service department , all hourly paid employees , all inspectors
and testers , all confidential employees , guards, professional employees, and supervisors
as defined in the Act.
All salaried , technical , and clerical employees of the Respondent at the air arm
division, Friendship International Airport, Fort Meade Road, Maryland; excluding
inspectors ; time and motion analysts; buyers ; general subcontract specialists ; secre-
taries to : the division manager, the assistant division manager and the assistant to the
division manager , the manager of manufacturing , the contract administrator, the
supervisor of industrial relations , departmental managers , subdivision managers other
than section managers , and to the assistant application engineering manager; scholar-
ship employees while in training ; industrial relations assistants and interviewers; ad-
ministrative assistants to: the division manager, the manager of manufacturing,
departmental managers , and subdivision managers other than section managers; all
professional employees , including , but not limited to, engineers , application engineers,
manufacturing engineers , test engineers, flight engineers, engineering writers, and
nurses; pilots and copilots , guards, and supervisors , as defined in the Act.
All salaried technical and clerical employees of the Respondent in the management
services building, Friendship Airport plants, Baltimore, Maryland, excluding all pro-
fessional employees , all hourly paid employees , all employees of the engineering and
service department , all executive assistants , all inspectors and testers , all shop clerical
employees , all confidential employees , industrial relations assistants , interviewers,
buyers, guards, and supervisors as defined in the Act.
All clerical and technical employees in the systems department of the Respondent,
Friendship Airport plant, Baltimore, Maryland, excluding all professional employees,
all hourly paid employees of the engineering and service department, all confidential
employees , all industrial relations assistants , interviewers , buyers, guards , and super-
visors as defined in the Act.
All clerical and technical employees of the underseas division of the Respondent at
its Parker Road, Baltimore, plant, excluding all employees of the engineering and
service department , all hourly paid employees, all confidential employees, all industrial
relations assistants , interviewers , buyers, guards , professional employees , and super-
visors as defined in the Act.
I find further that the Union is currently the contractual bargaining representative
of all the employees in these units and has had such exclusive bargaining status at all
times material herein.
The testimony in this proceeding is undisputed that the Union sought to negotiate
with the Respondent concerning the increase in food prices in the plant cafeterias on
two occasions within the last year and that on each occasion the Respondent refused
to negotiate . The more recent refusal occurred on or about January 9, 1965. At that
time, James Wallace, the Respondent's assistant industrial relations representative,
rejected the bargaining request made by Hare and Suroko on behalf of the Union, by
saying that he "could not negotiate with [them] anything that he had no control over,
that he had no control whatsoever over this increase in the cafeteria prices." The
implication was thus clear, particularly when measured against the events relating to
the prior request in October 1964, that then, as now, the Respondent was taking the
position that it has no legal obligation to bargain because the cafeterias are operated
by the caterer, an independent contractor, which sets the prices to be charged and any
bargaining by the Respondent with the Union over matters beyond its control would
therefore be futile. Additionally, the Respondent argues in its brief, in justification
WESTINGHOUSE ELECTRIC CORPORATION 1089
of its refusal to bargain, that the furnishing of cafeteria service is neither a condition
of employment nor wages but rather a convenience to the employees, who may use it,
or not, as they desire, that, assuming a bargaining obligation, it is impossible and
wholly impractical for the Respondent to bargain with the Union regarding a matter
which directly relates to, and affects, employees represented by two other unions and
even more employees who are unrepresented; and that the Respondent fulfilled its
bargaining obligation in October 1964 in the only real and practical way possible by
arranging for meetings between the Union and the caterer specifically to discuss
prices.9
The last-mentioned contention is clearly lacking in merit . It is obvious that, if
there is a bargaining obligation here, it cannot be satisfied by discussions between the
caterer and the Union. Such discussions would be held in a vacuum as there is no
existing collective-bargaining relationship between the caterer and the Union nor is
there any legal basis for invoking one. Nor is there merit in the Respondent's argu-
ment as to the impossibility and impracticality of bargaining with the Union, even
assuming that there was an obligation to do so. The fact that the subject bargained
about relates to, and affects, other employees who are either represented by other
unions or are unrepresented does not require calling a halt to the collective-bargaining
process. It is fundamental in the law of labor relations that the definition of a manda-
tory subject of collective bargaining does not turn upon whether the subject under
negotiation has an impact beyond the confines of the bargaining unit.1'9 While the
ultimate bargain may, in some situations , be affected thereby, such considerations
afford no legally tenable basis for a threshold refusal to bargain.
I am also unable to agree with the Respondent that the furnishing of cafeteria serv-
ice is not a condition of employment but rather a convenience to the employees, who
may use the cafeteria or not as they desire. In the above cited Weyerhaeuser case,
the Board, in holding that there was a statutory obligation to bargain as to the price
for meals served at the employer's sawmill and logging camps, rejected as too narrow
the argument 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 employer establishes as a matter of convenience for
its employees. The Board pointed out that the term was meant to encompass many
noncompulsory aspects of the employer-employee relationship,11 although what was
involved in the case at hand was conditions under which employees are required to
work. It is true that the instant operation is distinguishable in many respects from
the logging camps and sawmill operation in the cited case where there were employees
without feasible means of transportation who were necessarily obliged to live and
eat at company facilities. However, these differences lack controlling force because
here, as there, the circumstances compel employees to do their eating on the premises.
It follows, therefore, that, as in the Weyerhaeuser case, the eating facilities not only
represent a necessary condition of employment because of the way they affect these
employees but one that exerts the same force and effect as a condition that is expressly
made a necessary part of employment.12 It is consequently clear, and I find, that the
eating facilities, including the prices of the meals served, constitute a condition of
employment within the meaning of Section 9(a) of the Act.
There is, however, the further contention of the Respondent, in substance, that the
fact that the cafeterias are operated by the caterer, an independent contractor, which
sets the prices, places this matter in a different posture from the Weyerhaeuser case.
0 No such arrangements were made by the Respondent in January. Cromwell testified
the Union did not request that such arrangement be made.
10 Weyerhaeuser Timber Company, 87 NLRB 672, 688.
11 See Elgin Standard Brick Manufacturing Company, 90 NLRB 1467, 1490; Abbott
Worsted Mills, Inc., 36 NLRB 545, enfd. 127 F. 2d 438 (C.A. 1).
12 See Central Illinois Public Service Company, 139 NLRB 1407, 1415
The fact that the Union has not requested bargaining with respect to changes in
cafeteria prices before October 1964, or has not mentioned the issue of cafeteria prices
during its approximately 2 years of negotiation with the Respondent concerning a local
supplement (for the aerospace division only), to the existing nationwide agreement, does
not constitute a waiver of the right to seek bargaining here. In the first place, I find
no clear and unequivocal waiver here. See The Timken Roller Bearing Co v. N.L.R B.,
325 F. 2d 746, 751 (CA. 6), cert denied 376 U.S 971 ; Perkins Machine Company, 141
NLRB 98, enfd. 326 F. 2d 488 (CA 1) ; C & C Plywood Corporation, 148 NLRB 414;
Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 956, 957. Secondly, there
was no necessity for the Union to seek from the Respondent a right which it already had
by statute, viz, to be bargained with concerning a condition of employment.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent reasons that because the matter of prices is beyond its direct control 13
any bargaining it might do would be an "exercise in futility" and it is of no conse-
quence that the Respondent might be able indirectly to have some control by ceasing
to do business with the independent contractor who does have such direct control
While the instant case is thus different from the Weyerhaeuser case in that there,
unlike here, Weyerhaeuser itself operated the eating facilities, I am of the view, and I
find, that this does not affect my earlier finding that the subject matter herein is a con-
dition of employment. Compare United Aircraft, Pratt & Whitney Aiiciaft Division,
139 NLRB 39, enfd. 324 F. 2d 128 (C.A. 1). There, as here, the cafeteria facilities
were operated by an independent contractor. Among the provisions of the existing
agreement was one requiring the independent contractor to furnish meals for the
employer's officers and employees "at the lowest cost consistent with the best quality
of food, prepared and served under hygienic conditions"-a provision analagous to
terms in the instant contract. The principal issue was the legality of the no-distribution
rule promulgated by the employer because of the union's distribution of leaflets which
criticized, inter alia, the food served in the cafeteria, the prices charged, and the use
of unclean trays. The Board there affirmed the Trial Examiner's finding of illegality
and, significantly, adopted without comment the Trial Examiner's finding in this con-
nection that "There is no question that the quality of food served in the cafeterias and
the prices charged were matters of legitimate concern to employees and related to
their terms and conditions of employment."
As already found, the contract between the Respondent and the caterer provides,
in significant part, that "the Carterer shall provide all meals and foodstuffs of good
quality, subject at all times to the approval of the Manager of [the Respondent] at the
premises ... "; "the quality and prices of the meals served ... shall at all times be
reasonable"; the Cateier "shall maintain accounting records ... which shall be sub-
ject to periodical audit at the discretion of [of Respondent] and daily deposit slips in
duplicate shall be furnished each day to [the Respondent]"; a monthly record of all
sales shall be submitted to the Respondent; and the contract is terminable by either
party upon 60 days' written notice to the other party. The Respondent's October 16,
1964, letter to its employees with respect to its policy relating to cafeterias 14 is illumi-
nating on the Respondent's role in the administration of this 'contract. Thus, the
Respondent there indicates that it has provided the cafeteria facilities because it "is
anxious to eliminate eating in the shop and office facilities where cleanliness is such
an important factor in satisfying our customers"; that, in order to take care of serv-
ing beverages and food, the contract was entered into with the caterer; that the
caterer's "operations are monitored" by it to be sure that employees get good service
and quality food at prices as ieasonable as possible; that it periodically reviews cafe-
teria prices and, in order to "monitor the prices," it audits the cost for food and labor
incurred by the caterer which affords a basis for determining the reasonableness of
prices; and that it has always insisted on serving food of the highest quality at prices
as reasonable as possible. Of further illumination is the actual practice by the parties
when a price increase is under consideration. As already indicated, Cromwell testi-
fied that the practice has been for the caterer to tell the Respondent in advance of an
intended price change; that there have been discussions in these instances about
prices, and that the Respondent feels that it should tell the caterer fully when "we
don't feel there is a justification for [the increase]"; and that changes in prices are
announced to all employees by the posting on plant bulletin boards of a notice to that
effect from the caterer, the posting being handled by the Respondent's office personnel.
It is apparent, and I find, that under its contract with the caterer, and as a matter of
policy, and in actual practice, the Respondent retains a substantial measure of control
over the prices to be charged in the cafeterias. While the caterer initiates the action
with respect to a change in prices, the Respondent, by retaining the right to cancel the
contract on 60 days' notice to the caterer, holds a veto power in the matter of prices
of food in the cafeterias, should there be warrant for its exercise. Cromwell indicated
as much by describing the caterer's practice of notifying the Respondent in advance of
an intended increase as good business practice because the contract is terminable on
60 days' notice and not to tell the Respondent would be to risk cancellation. In view
of this veto power, I cannot accept the Respondent's contention that bargaining on
this subject matter with the Union would be an exercise in futility At the very least,
the Respondent is in a clear position to influence and exert pressure upon the caterer
with respect to the establishment of food prices. This is not to say that the Respond-
13 While the Respondent speaks in its brief variously about having no control and having
no direct control , the burden of its argument is that it lacks direct control over the subject
matter, essential to a bargaining obligation
14 See supra
WESTINGHOUSE ELECTRIC CORPORATION 1091
ent's legal obligation necessarily requires that it exert such pressure or utilize its veto
power. It is to say that the duty to bargain requires the Respondent to meet with the
employees ' representative in order to discuss and exchange views regarding their com-
plaints or grievances concerning the subject of the prices charged in its cafeterias, a
condition of employment and therefore a mandatory subject of collective bargaining.
That such discussion between the Respondent and the Union may prove abortive is
not controlling ; it is sufficient that such discussion may prove persuasive and be pro-
ductive. Compare East Bay Union of Machinists , Local 1304 , United Steelworkers of
America, AFL-CIO, et al. (Fibreboard Paper Products Coip ) v. N.L.R.B., 379 U.S.
203, 213-214, in which the Supreme Court, in discussing the mandatory subject of
"contracting out" or subcontracting , said "The short answer is that, although it is not
possible to say whether a satisfactory solution could be reached , national labor policy
is founded upon the congressional determination that the chances are good enough to
warrant subjecting such issues to the process of collective negotiations."
For all these reasons, I find that the Respondent was under an obligation to bargain
with the Union concerning price changes to the extent of its executive ability to con-
trol and influence food prices . By failing to notify the Union of the proposed price
changes in the cafeterias , by refusing , upon request , to bargain concerning such
changes, and by unilaterally determining the reasonableness of the proposed price
changes, the Respondent has acted in derogation . of its duty under the Act and has
failed to bargain collectively in violation of Section 8(a) (5) and ( 1) of the Act.
III. THE REMEDY
I have found that the Respondent , by failing to notify the Union of the proposed
price changes in the cafeteria , by refusing upon request to bargain concerning such
changes, and by unilaterally determining the reasonableness of the proposed price
changes, has refused to bargain collectively . In order to effectuate the policies of the
Act, I shall recommend that the Respondent be required to notify the Union of any
price changes that the caterer in the future may desire to effect, that the Respondent
be required , upon request, to bargain collectively with the Union as the exclusive
representative of its employees in the appropriate units with respect to the prices of
food now charged in the cafeteria , and that the Respondent be required to refrain in
the future from determining the reasonableness of proposed changes in the price of
food charged in the cafeteria whereby employees in these units may be affected, with-
out prior consultation with the Union.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce 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. The following employees of the Respondent at its Baltimore , Maryland, installa-
tions constitute units appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All salaried , technical , and clerical employees at the ordnance department, Lans-
downe, Maryland , plant, excluding all professional employees , all shop clerical
employees , all inspectors and testers , guards, and supervisors as defined in the Act.
All clerical and technical employees in its electronics division at Friendship Inter-
national Airport , Baltimore, Maryland, all clerical and technical employees employed
at its Parker Road, Baltimore, Maryland , plant, all clerical and technical employees,
including utility men , located at Morrell Park, 2940 Washington Boulevard , working
under the direction of the engineering department of the electronics division located at
Parker Road, excluding all employees of the engineering and service department, all
hourly paid employees , all inspectors and testers, all confidential employees , guards,
professional employees , and supervisors as defined in the Act.
All salaried , technical , and clerical employees at the air arm division , Friendship
International Airport, Fort Meade Road, Maryland; excluding inspectors ; time and
motion analysts ; buyers; general subcontract specialists; secretaries to. the division
manager, the assistant division manager and the assistant to the division manager, the
manager of manufacturing , the contract administrator, the supervisor of industrial
relations, departmental managers, subdivision managers , other than section managers,
and to the assistant application engineering manager; scholarship employees while in
training ; industrial relations assistants and interviewers ; administrative assistants to.
the division manager, the manager of manufacturing , departmental manager, and sub-
division managers other than section managers ; all professional employees, including,
217-919-66--vol. 15 6-7 0
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but not limited to , engineers , application engineers , manufacturing engineers, test
engineers , flight engineers , engineering writers, and nurses; pilots and copilots, guards,
and supervisors as defined in the Act.
All salaried technical and clerical employees in the management services building,
Friendship Airport plants, Baltimore, Maryland, excluding all professional employees,
all hourly paid employees, all employees of the engineering and service department,
all executive assistants, all inspectors and testers, all shop clerical employees, all con-
fidential employees , industrial relations assistants , interviewers , buyers, guards, and
supervisors as defined in the Act.
All clerical and technical employees in the systems department, Friendship Airport
plant, Baltimore, Maryland, excluding all professional employees, all hourly paid
employees , all employees of the engineering and service department , all confidential
employees , all industrial relations assistants , interviewers , buyers, guards , and super-
visors as defined in the Act.
All clerical and technical employees of the underseas division at its Parker Road,
Baltimore, plant, excluding all employees of the engineering and service department,
all hourly paid employees, all confidential employees, all industrial relations assistants,
interviewers, buyers, guards, professional employees, and superviors as defined in
the Act.
4. The Union at all times material has been and is the exclusive representative of
all the employees in the aforesaid bargaining units within the meaning of Section
9(a) of the Act.
5. By refusing , on and since about January 9 , 1965, to bargain collectively with the
Union as the exclusive representative of the employees in the aforesaid bargaining
units, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that the Respondent, Westinghouse Electric
Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to consult and bargain collectively with Salaried Employees Associa-
tion of the Baltimore Division, Federation of Westinghouse Independent Salaried
Unions, as the exclusive bargaining representative of all the employees included in
the units specifically set forth in paragraph 3 of the Conclusions of Law herein with
respect to the reasonableness of proposed changes in food prices at the Respondent's
cafeterias.
(b) Making determinations with respect to the reasonableness of price changes at
our cafeterias proposed by Baltimore Catering Company and affecting any employees
in the units above described, without prior consultation with the above-named Union.
(c) In any like or related manner interfering with the efforts of the above-named
Union to bargain collectively on behalf of the employees in the above-described units.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request, bargain collectively with Salaried Employees Association of
the Baltimore Division, Federation of Warehouse Independent Salaried Unions, as the
exclusive representative of all its employees in the aforesaid appropriate units with
respect to any changes, now in effect or hereafter proposed, in food prices charged
employees at its cafeterias.
(b) Post at its locations in Baltimore, Maryland, involved herein, copies of the
attached notice marked "Appendix." 15 Copies of such notice, to be furnished by the
Regional Director for Region 5, shall, after being signed by an authorized representa-
tive of the Respondent, be posted immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
"In the event that this Recommended Order is adopted by the Board , the words "a
Decision 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 be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
WESTINGHOUSE ELECTRIC CORPORATION 1093
taken by the Respondent to insure that such notices are not altered , defaced, or
covered by any other material.
(c) Notify the said Regional Director , in writing , within 20 days from the date of
the receipt of this Trial Examiner 's Decision , what steps the Respondent has taken to
comply herewith.16
16 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 the 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 National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT refuse to consult and bargain collectively with Salaried Employ-
ees Association of the Baltimore Division , Federation of Westinghouse Inde-
pendent Salaried Unions, as the exclusive representative of all the employees in
the bargaining units described herein with respect to changes in food prices
charged at our cafeterias.
WE WILL NOT make any determinations as to the reasonableness of the changes
in food prices at our cafeterias proposed by Baltimore Catering Company and
affecting any employees in these bargaining units, without prior consultation
with the above-named Union.
The appropriate bargaining units, herein referred to, are as follows:
All salaried , technical , and clerical employees at the ordnance depart-
ment, Lansdowne, Maryland , plant, excluding all professional employees,
all hourly paid employees, all confidential employees, all inspectors and
testers, guards , and supervisors as defined in the Act.
All clerical and technical employees at the electronics division at Friend-
ship International Airport, Baltimore , Maryland, all clerical and technical
employees employed at the Parker Road, Baltimore , Maryland , plant, all
clerical and technical employees , including utility men , located at Morrell
Park, 2940 Washington Boulevard , working under the direction of the engi-
neering department of the electronics division located at Parker Road,
excluding all employees of the engineering and service department, all
hourly paid employees , all inspectors and testers , all confidential employ-
ees, guards , professional employees , and supervisors as defined in the Act.
All salaried, technical, and clerical employees at the air arm division,
Friendship International Airport, Fort Meade Road , Maryland; excluding
inspectors; time and motion analysts ; buyers; general ' subcontract special-
ists; secretaries to: the division manager, the assistant division manager
and the assistant to the division manager, the manager of manufacturing,
the contract administrator, the supervisor of industrial relations , depart-
mental managers , subdivision managers other than section managers, and
to the assistant application engineering manager; scholarship employees
while in training; industrial relations assistants and interviewers ; adminis-
trative assistants to: the division manager, the manager of manufacturing,
departmental managers, and subdivision managers other than section man-
agers; all professional employees , including, but not limited to, engineers,
application engineers , manufacturing engineers, test engineers, flight engi-
neers, engineering writers, and nurses; pilots and copilots , guards, and
supervisors as defined in the Act.
All salaried technical and clerical employees in the management services
building, Friendship Airport plants, Baltimore, Maryland, excluding all
professional employees, all hourly paid employees , all employees of the
engineering and service department , all executive assistants , all inspectors
and testers , all shop clerical employees , all confidential employees , indus-
trial relations assistants , interviewers , buyers, guards , and supervisors as
defined in the Act.
All clerical and technical employees in the systems department , Friend-
ship Airport plant, Baltimore , Maryland, excluding all professional employ-
ees, all industrial relations assistants , interviewers, buyers, guards, and
supervisors as defined in the Act.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All clerical and technical employees of the underseas division at the
Parker Road , Baltimore , plant, excluding all employees of the engineering
and service department , all hourly paid employees , all confidential employ-
ees, all industrial relations assistants , interviewers , buyers, guards, pro-
fessional employees , and supervisors as defined in the Act.
WESTINGHOUSE ELECTRIC CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 707 North
Calvert Street, Baltimore , Maryland, Telephone No. 752-8460, Extension 2100.
Marion Bottling Company, Inc. and International Union of Dis-
trict 50, United Mine Workers of America . Case No. 5-CA-
3197. January 21, 1966
DECISION AND ORDER
Upon a charge and amended charge duly filed by International
Union of District 50, United Mine Workers of America, herein
referred to as the Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 5, issued a com-
plaint dated September 17, 1965, against the Respondent, Marion
Bottling Company, Inc., alleging that the Respondent had engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the
National Labor Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing were served upon the parties.
With respect to the unfair labor practices, the complaint alleges,
in substance, that the Respondent, in a letter distributed to its employ-
ees on or about June 15, 1965, threatened the employees with economic
reprisals because of their membership in, activity on behalf of, and
adherence to the Union.
The Respondent's answer, filed on September 24, 1965, admitted
certain jurisdictional and factual allegations of the complaint but
denied the commission of unfair labor practices.
On October 15, 1965, all parties to this proceeding entered into a
stipulation which contains a statement of facts; expressly waives a
hearing before a Trial Examiner, the making of findings of fact and
conclusions of law, the issuance of a Trial Examiner's decision, and the
filing of exceptions and oral argument before the Board; agrees to
transmit the case directly to the Board for findings of fact, conclusions
of law, and order based upon a record consisting of the charges, com-
plaint, answers, affidavits of service, the stipulation, and the letter of
June 15, 1965; but provides that the parties may file briefs with the
Board.
156 NLRB No. 100.