*1 ELECTRIC CORPO WESTINGHOUSE Pеtitioner, RATION, LABOR RELATIONS
NATIONAL BOARD, Respondent.
No. 10545. Appeals
United Court of States Circuit. Fourth
Argued Oct.
Decided Nov. *2 Wayman, Pittsburgh, Pa., respect John G. to in food at Scheinholtz, (Leonard plants comprising L. Paul A. Manion cafeterias in the em- McClay, Reed, Smith, ployer’s Friendship & Pitts- Shaw Center Defense near burgh, Pa., brief), petitioner. eight Airport, on for about miles from center of Baltimore.1 The Board cross- Bendixsen, Atty., B. Glen N. L. R. M. petitions for of its enforcement order. Counsel, (Arnold Ordman, Dominick Gen. Manoli, Counsel, L. Marcel Associate Gen. response the announcement of Mallet-Prevost, Counsel, Asst. Gen. prices, Association, in increase food Sohn, Atty., N. on Michael N. L. R. bargaining representative exclusive briеf), respondent. appropriate units within the Defense Roth, Benjamin Center, requested Werne and William in October 1964 a meet City, Au- Westinghouse New York for National brief to discuss cafe Merchandising Ass’n, as amicus meeting tomatic teria conditions. A was ar ranged curiae. office representative industrial relations SOBELOFF, Before BOREMAN Catering executives the Baltimore CRAVEN, Judges. Circuit Company, operator of the cafeterias Westinghouse.2 under contract from A Judge. CRAVEN, Circuit representative Westinghouse pres was Corporation Westinghouse Electric ent. He considered his status of an and set pеtitions this court to review observer. Re- Labor of the National aside an order directing Westinghouse adopted position lations Em- with the Salaried house ployees the Association would have to discuss prices exclusively the Baltimore caterer, Association of food with the Division, independent since Federation as an contractor it con- (herein- Independent prices. Hence, Westing- Salaried Unions trolled cafeteria Association) in obligation after to as the referred house maintained it had no Board are from the Catering (January 21, 1966). The decision Set out below .at for the use of in their vides ment terias “2. the event glassware, tory WESTINGHOUSE, “3. “7. WESTINGHOUSE above mentioned. shall at his own “6. CONTRACTOR TOR expense, tice sils [*] WESTINGHOUSE to the other capital equipment (E)ither party WESTINGHOUSE shall upon sixty (60) days * * the cafeterias. equipped Company time to terminate [*] reported entirety renewable maintain the use of the CONTRAC- silverware and *. and order of the Labor loss [*] are relevant CONTRACTOR, in a party. (CONTRACTOR): remain the at 61 L.R.R.M. expense replace, * * * in shall have the [*] one-year and the shall, manner good order, which it shall cooking [*] written this which shall at his own all provisions Baltimore premises property maintain satisfac- contract provide [*] dishes, agree- uten- cafe- pro- no- in vide ficient “8. meals thereof, quality the cafeterias HOUSE the times to the ileges TRACTOR TRACTOR shall mentioned. the discretion of INGHOUSE. shall be “9. The per year HOUSE on or times be reasonable. shall be furnished each “19. As records sales shall be submitted to WESTING- endar month.” each month [******] CONTRACTOR all meals daily deposit served, personnel hereinbefore in said in agreement compensation quality advance, thoughout covering shall WESTINGHOUSE sum approval quantity, A and food-stuffs of * * * before and hours of service cafeterias (Emphasis added.) monthly at the оf one dollar pay maintain WESTINGHOUSE, slips periodical * shall furnish suf- properly operate granted, the 10th subject day premises and shall * preceding record shall at all WESTING- to WEST- accounting ®. CON- Manager duplicate the term audit at ($1.00) at all day CON- above privi- of all pro- cal- respect ing company making before determina- negotiate rep- concerning refused to the matter with tions their reasonableness. resentatives the Association. Board, January 1966, Labor Subsequently, January 1965, adopted findings, conclusions, posted caterer of an notice additional in- recommendatiоns of the Trial Examiner price crease of five cents of hot with some modifications. Two of the five *3 food entrees and of one vigorous cent in the Board members filed a dissent. carry-out Westinghouse, coffee. agreed majority of Board The request negotiate of the Association to in disputed sub- matter was a regard increases, again to these refused ject Westinghouse and that for the stated reason that it had no con- 8(a) (1) (5) had committed unfair prices by trol over cafeteria set the cater- by refusing negotiate practices labor er, independent an cоntractor. by after the Association. The Westinghouse unwillingness found, however, The recommended order was bargain filing unfair of an accordingly resulted in the to be too broad and was re- by practice charge Association. permit Westinghouse labor vised to laterally to uni- issued, complaint A and after hear- was consult with the caterer concern- ing, ing proposed the Trial price changes a decision was rendered approve Westing- Examiner. He found that them without notice or discussion with including eating facilities, house prices so, the Association. Even the Labor served, majority of meals constitute condi- required Westing- Board meaning employment tion of specific request within house honor “a for bar- 9(a) gaining of the National Labor Section about made or to be Act;3 Relations re- made.” tains a substantial measure control question presented The prices; over the cafeteria and that its petition a narrow whether the one: bargain refusal to the Association in prices beverage of food in served respect in increase at the Defense cafeterias engaging prac- house is in unfair labor independent Center an catеrer are the proscribed by 8(a) (1) tices Sections and subject mandatory bargaining. (5) of the Labor Act.4 inquiry initial for the court is whether or- The Trial Examiner’s recommended the cafeteria statutory phrase come within the der would have employ- “conditions of concerning consult with the Association Congress compelled ment” as to which proposed changes prices by the eater- bargaining. 9(a) 3. Section of the National Labor Re- 158(a) (1). Act. 29 U.S.C.A. These § provides pertinent part lations Act collectively bargain include the “to that: through representatives own “(a) Represеntatives designated * * choosing 29 § U.S.C.A. purposes selected for the of collective 8(a) (5) Section makes it an unfair labor bargaining by majority of the em- practice employer for an “to refuse to ployees appropriate in a unit for such collectively representa- with the purposes, repre- * * shall be the exclusive employees tives of his 29 employees in of all the 158(a) sentatives § U.S.C.A. gaining Collective bar- purposes unit for bar- of collective 8(d) defined Section gaining respect pay, performance to rates obliga- “the of the mutual wages, employment, hours of or other employer representa- tion of the and the * * employment conditions employees tive of the to meet at rea- added.) (Emphasis § 29 U.S.C.A. sonable times and confer faith respect hours, wages, and other 8(a) (1) 4. Section of the National Labor employment terms and conditions * * * provides Relations Act it shall be obligation but such does an unfair compel labor for an party agree pro- either to a with, restrain, posal “to require interfere or coerce making of a conces- rights in the exercise of the 158(d). (Empha- sion.” 29 U.S.C.A. § guaranteed” added.) them in Section 7 of sis year concurring Stewart, dollar a and that on at least oc- Justice one Mr. Corp. operat- Paper L. casion it underwrote Products N. the caterer’s v. Fibreboard strong B., parlance, loss is common indication that West- R. states that “[i]n inghouse employment person’s considers the of some cafeterias the conditions of a significance job obviously physical as a and as inducement are most the various maintaining working employee an aid to morale. dimensions his environment.” Corp. Paper Fibreboard N. L. Products distinguish seeks 203, 222, 398, 409, R. 379 U.S. S.Ct. Weyerhaeuser Co., L.N. Timber (Stewаrt J., (1964) 13 L.Ed.2d (1949), R. B. 672 the Labor where concurring). availability of food and statutory held that had a drink at reasonable seems to us duty price of meals about the obviously important part physical of one’s logging camps. It true served at its working What, including environment. logging camp cry that a far from is a breathes, air one could more metropolitan Baltimore. But the need “physical” Why company pro- *4 ? would a same, doing difficulty eat is the and so employees vide its a on its may be occasioned different factors premises, effectively subsidized,5 except being meaningful without there a dis- its concеrn and interest in their tinction the cases. physical working ? environment sought the belittle has on- that Insistence solely by viewing it case issue in this subject a are not conditions site cafeteria penny controversy of a an over increase a bargaining mandatory of collective coffee, cup price it in- of a on the especially in the without merit possibly “ma- have sists could that record shows circumstances. The employ- of terial on conditions effect” Westinghouse employees from are allowed argues held has that this circuit ment. It thirty forty-five minutes lunch whether that to determinе order eating only independent inadequate that particular matter should be dis- exist a reasonable facilities within contem- within the of forty- forty plants.6 of the Some tance statute, plation a “ma- Westinghouse employees must have percent the five “wages, plant impact” significant who in the cafeterias. Those eat terial or dependent on em- want hot food are employ- hours, or other conditions may although ployer’s cafeterias, others ment,” citing Mine District United carry pails prefer from home. lunch (4th L. R. F.2d 234 Workers v. N. Lehigh 1966), N. L. B. Cir. R. Westinghouse provides fact Co., F.2d 821 Portland Cement capital space the caterer with the (4th 1953). equipment for rent one the nominal Cir. eating “off-the-premises Westinghouse, effect, when subsidizes because many capital equipment fraught space ns to with so obstacles it makes employees impossible for for nominal con- se- to the caterer make it available Moreover, the time record cure a meal and return within sideration. the shows * * * (T)he near- them. the caterer allotted to reimbursed during off-the-premises eating $1,800.00 est facilities extent considering away, is, period about a mile there when the cafeteria at one earlier employees began employ- large operations at these the number before location seating capacity peak. sites, the at insufficient had reached its ment ready places, there a lack of available places specifically commercial found to such Labor Board access
6. The and, dining transportation, private “inadequate were auto- facilities were there (the used, the there would be a reasonable distance mobiles inescapable within getting Westinghouse) plants.” time factor The Board incident lots, company parking findings adopted Exam- from Trial the the of the finding public traversing highway which included iner by existing parking space parking “compelled” or near employees and then were premises eating place.” on to eat circumstances place great majority True, those of work than the District contain did very employ- employees,” words, spoken dif- of the in a conditions were despite sufficiently affected, had ment were ferent context. There only twenty-five percent into certain fact that entered subcontracts question occupied housing, wаs maintenance workers such work living quarters other whether it should be were available to every them. advance about decision to sub- We thus found a ef- “material” contract, although merely practices fect af- because the number of workers might substantially employees’ fected in the future affect was less than is in- opportunities. present dispute. volved in work It was shown that pre-existing subcontracting charged' An increase any employee had not resulted suffer- only facility avail offered in the layoff or loss of overtime. The unquestionably employees has. able to the agreed court that on such a record the impact on the workers. substantial Board was entitled to conclude that there price was no small amount the increases impact “substantial” adverse employer’s caused not the meas coffee hot dishes is subcontracting decisions. In the case at importance In. ure of issue. bar, however, dispute is not over man whether matter is a possibility the theoretical of a future datory subject bargaining, whether price increase, but a increase that financially much or little is involved is not. already been instituted and that af- *5 controlling test. fоrty forty-five fects percent some to touching man no issue here is employees. Involved While in 50 District we agerial core' lie at “the prerogatives which no found impact substantial on the em- control,” Fibreboard entrepreneurial ployees requiring employer to bar- B., Corp. 379 Paper L. v. N. R. gain, Products we impact observed that if even 409, 223, 398, 203, L.Ed. 13 U.S. 85 S.Ct. substantial, were might unduly it be bur- (Stewart, J., con 233, (1964) 246 2d impracticable densome and require to full- benefit, employee curring), encom but an scale every in advance of de- requirement to- passed in the Labor Act’s cision to put subcontract beforе it was discussing bargain collectively.7 “con In into keeping effect. sug- with this proper employment” are gestion, ditions of has, the Board case, in this limit- subjects bargaining, In court ed by its order express reservation 247,. B., L. R. 170 F.2d land Steel Co. N. that need not over 1948),. 251, (7th proposed Cir. price 12 A.L.R.2d advance, increases in feeding”' “in-plant named as illustrative need discuss employee as. as well as such benefits after unilaterally effectuated periods, facilities, health clinic vacation specific and of the union. pension plans. underlying phi The Similarly, Lehigh Cement, Portland losophy that of the Labor Act is discus supra, company-owned held we that hous- manage sion of issues between labor proper subject is a of collective bar- prophylactic ment serves as a valuable gaining “materially if it affects the con- removing grievances, fancied, and real or employment.” dispute ditions of The improve to tends and stabilize labor rela employer’s that case concerned the re- Experience major tions. teaches fusal unilaterally after he had interruptions may spring work from company-owned raised the rents on hous- seemingly trivial causes. ing. We found that where thе rent had prevailing been rate, “coupled below the Westinghouse maintains even living with the convenience of price charged nearer should the food and 7. Neither the Association nor participate forming the Board or to the contract any right caterer, has claimed the Association participate selection caterer policies. from reserva-
beverage
company-operated
is evident
in a
This
established
tions in
contract8
of bar-
be considered a
Westinghouse
practices
the cater-
gaining,
ought
negotiate something
er.
which it has no
over
Westinghouse insists,
This,
control.
specifies
meals
The
contract
futility.
would be mere exercise
good quality, sub-
foodstuffs are to be
ject
Westinghouse
approval of the
Westinghouse
The contention
quality
manager,
prices of
and that
over
that it
no control
exercises
are at all times to be reasonable.
meals
question of law but
does not
ac-
Provision is made maintenance
counting
simply
Trial
Examiner
one of fact.
periodic
records and
audits
decision, adopted
specifically in his
found
Daily
Westinghouse.
discretion
Board, the Labor
monthly
deposit slips sales records
measure of
“retains a substantial
control
company
must
be submitted
charged
the cafe
over
facilitate audit and determination
finding
of this
teria.” Judicial review
prices.
of reasonableness of
“sup
limited
ported
whether it is
Moreover,
it has
been the
evidence on
substantial
the caterer to inform and
in ad-
discuss
**
record
as a whole
considered
price changes
vance intended
with West-
10(e)
(f)
Section
National
inghouse.
necessary
appear
This would
Act,
Labor Relations
29 U.S.C.A. §
against
sixty-
to insure
invocation of the
(e), (f),
Corp.
Camera
L.
Universal
v. N.
day
clause, giving
termination
either
R.
340 U.S.
71 S.Ct.
95 L.Ed
party
to end the
after
contract
sixty days written notice to the other.
persua-
clause accords
The record taken as a whole in
leverage
sive economic
to influence cafe-
controversy supports
the conclusion
policies.
teria
of the Trial Examiner. There
abun
Westinghouse acknowledges
dant
in a letter
evidence that
ex
employees,9reproduced
power
ercises
to its
in the mar-
extensive
over cafeteria
*6
provide
provisions
Pertinent
AVe
all
facilities
the
service.
tlie
they
responsible
Catering Cоmpany
for
remainder.
con-
the
are
house-Baltimore
supra.
operations
are
us
Their
monitored
tract are set out in note
employes
good
get
serv-
sure that
“WESTINGHOUSE
ELECTRIC
ice, quality
prices
and at
as rea-
food
CORPORATION
possible.
sonable as
Space
“Defense
Center
periodically
revieio
“We
our cafeteria
*1*
survey
prices,
and a recent
shows
16, 1964
“October
higher
no
than
non-sub-
are
other
Employee:
“Dear Fellow
prices in the
industrial
cafeteria
sidized
great
“There
deal
mis-
has been
a
In order
the
Baltimore area.
to monitor
given
information
out about оur cafe-
prices,
toe
costs
audit
the
cafeteria
for
you
I
like
tell
what our
teria.
would
incurred
the Balti-
and labor
food
more
policy is.
Company
Catering
toe can
so
eating
to eliminate
“We are anxious
determining
have a basis
rea-
the
shop
areas where cleanli-
office
prices.
prices,
sonable
These
important
factor
ness is such an
in satis-
course,
consideration
are set
due
Therefore,
pro-
fying our customers.
we
com-
and labor costs and are
the conveni-
vide
facilities
As
rendered.
mensurate
for the services
you bring
employеs
ence of our
—whether
this, prices
example
our visitors
your
purchase
lunch
it at the counter.
or
higher
dining
at
set
rate
room are
your
and wo
no
This choice is
own
have
additional
service
order
care of
take
way
one
the other whether
interest
manage-
provided for
our customers
bring
you buy your
lunch
it. We
ment.
provide
order
take
facilities
serving
always
beverages
food,
serving
“We have
insisted
we
care of
highest quality,
at
as
Balti-
into a contract
entered
food of
possible.
perform
Catering Company
reasonable
AVe believe
more
Westinghouse suggests
gin,
оperations are monitor-
that cafeteria
that the
good
requiring
at
order of
negotiate
ed
it to insure
service and food
the Labor Board
it to
prices,
it audits costs
over cafeteria
reasonable
increases is
ordering
doing
tantamount to
order to have basis for
it to cease
caterer,
prices.
business with
the reasonableness of
The com-
and amounts
pany
always
assures
has
therefore to an unfair
labor
its
it
.10
highest
serving
8(e)
under Section
“insisted on
quality,
food of the
the Labor Act
agree.
pos- We do
at
not
as reasonable as
Association has
аsked,
added.)
(Emphasis
not
Westinghouse
nor
sible.”
ordered
agree
to cease business
Westinghouse urgently insists that the
with the caterer. We cannot assume that
impracticable
Labor Board’s order is
exchange
bargaining
ideas
purposes
will not effectuate
produce
table will
no
Nor
alternatives.
is
National Labor Relations Act. We dis-
employment
to be assumed that
of an
agree. Westinghouse’s position
is other
necessarily
caterer would
result in
premised upon
notion,
dealt with here-
prices.
any event,
lower
inabove, that it has no control over the negotiate
rеspect
to a condition of em
caterer and that
about
ployment may
solely
not be denied
be
would be futile for the reason that no
possibility
cause of the remote
that the
agreement
possibly
could
be reached.
employer may
to alter his
Fibreboard,
relationships
“[t]he
said in
business
As was
with other em
ployers.
that, although
it is
short answer
satisfactory
say
possible
whether
inapposite
8(e)
Section
reached,
labor
national
could be
solution
proscribes
case since it
“hot
congressional
policy
founded
cargo”
arrangements
and other
intended
that the chances
determination
enough
policies
to affect
the labor relation
subjecting
is-
to warrant
employer. See, g.,
some other
e. Meat and
negotia-
process of
sues to the
collective
Highway Drivers Union etc. v. N. L. R.
Corp.
Paper
tion.” Fibreboard
Products
B.,
U.S.App.D.C. 287,
increases in
ducts will result in curtailed sales and less employees, company
work for that the spending too too much or little on rе- development thereby search and and is In the FALLICK, Matter of Lowell S. jeopardizing opportunities future work Bankrupt-Appellant, employee income, or, company that the manufacturing products to be used in a Harry KEHR, Appellee. shipped war or to nation of which the 157, No. Docket 30549. disapproves. my union knowledge To yet recognized these matters are not as Appeals United States Court of mandatory subjects bargaining. Second Circuit. Argued Nov. appears The Board in case to fol- articulated, theory, low its earlier Decided Dec. by Congress duty imposed there is a bargain collectively employers “to employees’representatives with re-
spect might matter which *9 emerge as a bone contention be-
future