McCall Corporation v. National Labor Relations Board
432 F.2d 187
4th Cir.
1970
Check Treatment

*1 Lee, Dayton, (John Francis X. Ohio Henry Estabrook, McKee, O. and Finn & CORPORATION, Petitioner, McCALL Dayton, Patterson, Jr., Ohio, H. Robert Richmond, McGuire, Battle, and Va., Woods & RELATIONS NATIONAL LABOR Cowden, Philip R. Becker and Pfarrer, Becker, John Crew & and Heron, Dayton, ( Ohio, peti- on brief for tioner. United States Court

Fourth Circuit. Bendixsen, Atty., Glen M. N.L.R.B. (Arnold 6,May Ordman, Counsel, Argued Dominick Gen. Counsel, Manoli, L. Associate Gen. Sept. 17, 1970. Decided Mallet-Prevost, Marcel Coun- Asst. Gen. sel, Atty., Winer, and Michael N.L. S.

R.B., brief), respondent. City, Benjamin New York Werne, Merchandising National Automatic Assn, as amicus curiae. Before and BOREMAN Judges. BUTZNER, Circuit PER CURIAM: Electric F.2d 542 court, sitting declined an order of National requiring an Relations Board bargain food served contractor held, company’s with two cafeterias. We dissenting, judges the cir- under the case the cumstances employ- were not meaning of Section within the ment” 8(d) § Labor Act U.S.C. [29 (d)], consequently this issue ployer’s refusal 8(a) (5) Section violation (1) Act § U.S.C. [29 (a) (5) (1)]. for and ruling adequate- against have been ly discussed minority opinions recounted.1 need not be us to overrule now. asks not, Westinghouse. areWe Neither persuaded we should. intervening nor Corp., 61 LRRM trie ; Weyerhaeuser (1966) (en 1967) banc), 1966) ; Corp., (panel) 25 LRRM Corp., NLRB No. ; Westinghouse Elec- LRRM 1187 *2 suggests any My circumstances objection cause for to the court’s result departing from our decision. twofold. previously I adhere to the view expressed Judge by myself Craven and Alternatively, the seeks Westinghouse that distinguish the cases. The material NLRB, (4th 1967), 387 F.2d 542 Cir. however, facts, are similar. rev’g 1966), was the had wrongly 550; decided. 387 F.2d at places they bring to eat or could F.2d I 891. But also think this case their own In neither lunches. instance quite distinguishable plants were the so isolated that house. ployees dependent were on the food that caused align controversies. myself the is this Judge with both chiefly distinguishes Craven, circumstance that writing original panel for the Weyerhaeuser these cases from in Westinghouse, Judge and with Bore- man, writing 25 LRRM 1163 (1949). in the view that the test whether an mandatory subject principal factual difference be- defined tween and McCall lies in NLRB v. degree the of control the exercised over the caterers who sold the “materially as whether the issue food. In the caterer affects the conditions of prices subject fixed the to a contractual Judge Hamley Id. at 823. As noted has provision “quality the Circuit, in a recent for the Ninth of the meals served the hours of “depends upon determination service in said thereof shall evaluation of the relevant facts of at all times be reasonable.” The em- Smelting particular case.” American provision could Refining Co. unilaterally 1969). Starting from this sixty days written In McCall notice. premise I have difficulties with two employer supplied the food and fixed reasoning Westinghouse majority believe, however, We and the case. difference indirect control exercised in in McCall over the direct control quality food is not of majorities here and in respect house too to the little deter- result. mination of National Labor Rela- tions Board which reverses. Enforcement denied. body Board was as a created with particular expertise to assist in con- Judge (dissent- Circuit struing applied the statute ing) : day-to-day employee-employer realities of relationships. has The court concerned with the here spelled respective out roles of question price charged whether In Board and courts. food in certain machines leading subject case it said that was a the Board is it was held that and ordered agencies presumably one over the issue. equipped Company, experience or informed disclaims obligation maintaining bargain, specialized to deal with field knowledge, within that of the food in the machines whose sold carry field with- “condition possess 8(d) meaning courts do not of section respect. Taft-Hartley must and therefore Act. supra, qualitative, quantitative, is a Universal Camera L.Ed. test. U.S. S.Ct. the Court'went majority apparently embraces findings should on to state that Board furnishing view that the be overturned significant become a *3 employment relationship a Court of feature of record before when the precludes clearly employees Appeals the Board’s unless the no have alterna- being justified a tive whatsoever. This is too restrictive of worth of construction of the fair estimate words “conditions testimony or its of in of witnesses informed house, judgment its within there on matters was substantial evidence special competence at Id. or both. alternative of reasonable sources added). (emphasis 490, food were not The 71 S.Ct. at 466 available. record ample demonstrates basis hardly imagine a situation One could conclusion outside sources Board’s be would where Board’s etc.) (restaurants, wagons, of food chuck giving helpful in more than relevant supply inadequate of are an source when phrase of em- to content available, all and are available at ployment” in order determine to employees on some shifts. mandatory subjects issues are accommodate cafeteria cannot bargaining. How, the facts either of on employees cannot all and at rate Westinghouse case, or the of by employees patronized who are be finds the Board’s decision forced, in contractual accordance with my compre- clearly precluded beyond through provisions, lunch to work supplied hension. The only minute fifteen hour with a ten to realistically company to premises seems it Under these circumstances break. a “condition of be majority’s de- to me it is the seems “In common to precluded” “clearly here that cision person’s parlance, the conditions us—not that on the record before of obviously the employment are most Board. physical of work- various dimensions Paper ing Fibreboard environment.” II Products 222, 379 U.S. L.Ed.2d 233 85 S.Ct. paying majority, in such defer- J., concurring).1 (Stewart, No Westinghouse, give to fails ence to expected reasonably to employee can adequate consideration to the critical eight-hour day eat- work a full that case this. difference between ing. regard Accordingly, the availa- Westinghouse, stressed, reasonably nonavailability bility or prices over the food and control “physical important priced food as independent third was vested working any employee’s dimension” caterer, party: “the monetary at amount environment. irrelevant; given case is determined “materiality” the cafeterias.” erected served in we coffee test heavily court relied at employees Washington shop Thus, com- Alumi machine in NLRB heating shop pany 82 S.Ct. num 370 U.S. days dispute (1962), which culminated cold L.Ed.2d 298 —a phrase act in the decision concertedly em “conditions of construed effort force the in an ployment” of the Taft in another section improve company that condition of Hartley lack of heat Act to include 15-16, employment. Id. at shop their in a cold : * * * S.Ct. 1103. running show a overturning employer’s on this fact in the Board take to blunt the force of an order: pricing control over the selection food, though very this was the element The Board would order so ef- banc house to with S.E.A. about fectively emphasized upon. and relied charged respectfully disagree and submit knowledge caterer with full cross-petition Board’s en- Westinghouse cannot make an en- granted. forcement should be forceable

;prices since does not them. Id. (emphasis added). at 550 control, element crucial absent *4 here, present but

dismissed as “not of DIE, INC., AHI MACHINE TOOL AND result.” While in the McCall Petitioner, machines are owned out- concern, Corpora- side NATIONAL LABOR RELATIONS tion which exercises total control over machines. alone determines what placed them, supplies is to Union, Automobile, International United kitchens, its own and sets the Aerospace Agricultural Implement Here, though prices. employees’ (UAW), Workers of America Interve nor. directly employer with the party, rather than with a third thinks itself controlled States United Court of Westinghouse simply both cases because Sixth. Circuit. involve Oct. food, though the circumstances are

entirely different.

In the case the em- say had no final about could, negotia- enter into a

He course, possibility

tion with the caterer with the disagreement, but unilaterally impose

could not onwill

the caterer hand,

contract. on the other completely unfettered in

fixing prices. He not have to anyone

consult is no and there

party say nay. him

Even if is assumed proposition

be correct on its facts—a disagree

with which I majority’s

above forth —the proceeding is, neverthe- less, justified. My brethren diversity

scant heed to the stark factual

presented They the two cases. under-