Westinghouse Electric Corporation v. National Labor Relations Board

542 per- responsibility for (1950).3 This statute Celestin’s R.S. 9:3221 injuries. liabil- the lessee to shift to lessor mits a ity injury occur- persons for to third appellant’s have We considered premises. Com- ring See on the leased objections the trial court’s in- Lease, 30 ment, The Louisiana Law structions. find them without merit. We (1965). 798, Enact- 846-50 Tul.L.Rev. judgment is strongly indicates this statute

ment of public policy Louisi- there is no Affirmed. against stipulating against a lessor’s ana liability assump- against lessee’s liability. Com- See lessor’s tion of the ment, (1959). 76

20 La.L.Rev. movables, did involve cases These cases Louisiana if we examine but the bailee find that bailment we damage liability loss limit his by bailed, if caused even the article negligence, provided, of the bailee’s ELECTRIC CORPO- WESTINGHOUSE part of course, that the limitation Petitioner, RATION, by bailor, agreed and not contract simply, v. example, print on fine RELATIONS LABOR NATIONAL receipt. v. Hes Le Blanc of a See back ter, BOARD, Respondent. (La.App.1950); Col 44 So.2d No. 10545. Co., gin Security Storage & Van 36, So.2d 160 A.L.R. La. Appeals United States Court analogy strengthened by (1945). The Fourth Circuit. expressly es article the fact April 1967. Reheard for hire or a bailor tablishes “compensated Nov. Decided depositary” to exercise handling goods depos care in his

ited, control an effec and would absent

tive waiver. Making guess an Erie-educated considering analogies, a Louisiana required to there is no

court is do when express authority, codal hold that we judge correctly the district instructed jury that, jury if the found the waiv agreement er in rental to have been part agreed contract,4 it should be having considered as the rental relieved Assumption responsibility 3. “R.S. 9:3221 instructions accordance with these lessee; liability The own- owner. from his ob- the lessor was released premises er of leased under a contract equipment ligation piece rea- rent a whereby responsibil- the lessee assumes sonably purpose fit for the for which ity for their condition liable for is not words, can was intended. In other he injury defect therein to caused is, say this as contract ‘You take anyone premises lessee is, anything happens it is where your and if right derives his thereon from the responsibility, not mine.’ But * * lessee, unless properly be done must contract enter- ed into lia- jury: order to circumvent judge 4. The trial instructed bility imposed by the Civil Code ordinari- must decide “[Y]ou whether or ” * * * parties ly entered into between the on a lessor. Wayman, Pittsburgh, John G. Pa. (Leonard Manion, Scheinholtz, L. A. Paul Reed, Smith, McClay, Pitts- Shaw & Pa.,

burgh, brief), petitioner. Bendixsen, Attorney, Glen M. L.N. (Arnold Counsel,. Ordman, R. B. General Manoli, Dominick L. Associate General. Counsel, Mallet-Prevost, Marcel Asst.. Counsel, Sohn, General Attorney, and Michael N. B., brief), N. L. R. for re- spondent. Benjamin Roth,. Werne and William City, New York on brief for National Merchandising Ass’n, Automatic amicus curiae. HAYNSWORTH, Judge, ting change such a into could not Before Chief effect BRYAN, approved. Nevertheless, SOBELOFF, BOREMAN, they issued Judges, requiring bargaining CRAVEN, re- an order sponse Circuit WINTER and “specific request sitting to a union en banc. changes bargaining about made or to made.” The other two Board members Judge: BOREMAN, Circuit vigorous a filed dissent. question here involved principal The re- petition for Westinghouse a filed Upon rec- the follows: be stated by panel a heard matter the view and whole, increases were as a ord considered judges judges Two court. of three this carry-out (a penny prices for in food should Board’s order that the determined en- food hot coffee and five cents dis- a filed third while the be enforced independent trees) an established favoring en- senting denial opinion Westing- operating tractor cafeterias Westinghouse petition filed a forcement. mandatory subject plants for col- house rehearing the rehearing before and a Westinghouse lective between view was ordered. en banc court Corporation Em- Salaried Electric and judges of majority participating of the ployees Association, representing a union rehearing en- is that on this this Westinghouse employees? some of the should Board’s order forcement litigation striking this A feature of denied. sharp at the division of high- merely will be The facts which opin- stage. The marked differences majority lighted out in here are set suggest question ion that the here is both dissenting opinions of court’s this and

novel and troublesome. three-judge panel.1 case, Reviewing history we this complex unfair Westinghouse operates find it was initiated Center, January practice charge filed and plants, labor as the Defense known Employees the Salaried housed at herein cafeterias involved are Associa-. (hereafter union) Friendship, tion company’s S.E.A. Lansdowne Regional sites, National from Director miles Road several and Parker Region Board, Labor Relations Balti- facili- Cafeteria Baltimore. downtown more, Maryland. February 17, operated servicing plants On ties these Regional Catering Company the complaint, Director issue a refused to the Baltimore investiga- reporting caterer) (hereafter that his under contract Westinghouse. tion failed to indicate a violation. S.E.A. Pursuant with contract, appealed Westinghouse pays or- General Counsel who the caterer Regional year per dered the Director issue a and of One Dollar rental complaint. equip- Westinghouse provides capital necessary operate facilities. ment hearing, After a the Trial Examiner party abso- Either to the contract has the Westinghouse found that had violated right, any time, to lute terminate 8(a) (1) (5) sections and the National upon sixty-days’ notice. written Labor Relations Act and recommended quality provides: The contract “9. Westinghouse required served, prices and the of the meals chang- respect with the union with thereof, cafe- in said hours of service prices. es in cafeteria food terias Westinghouse at all times be reasonable." shall disagreed The Board with the Trial right pe- has to conduct Examiner’s recommendation the five accounts riodic audits of cafeteria among members of the Board divided daily deposit and to have submitted themselves. Three of members said slips monthly record of sales. the Examiner’s order recommended impracticable forty forty-five percent about Between every change put- Westinghouse food before ate lunches Westinghouse Corporation N.L.R.B., 1966). Electric 891 Cir. during price again period in increases and cafeterias However, majority ini- question. of em the union refused. was then that litigation. lunches, sup ployees tiated this their carried own beverages plementing obtained them majority members three any, Few, vending if from machines.2 their appeared to base Board premises company’s employees left supplied fact that the lunch for lunch since shortness order attract cafeteria periods permit employees to would not employ accept would not otherwise off-the-premises eating places, travel eating were facilities ment obtain service and return. panel of provided. or upheld Board’s court which caterer announced October reasoning but accepted the Board’s cafeteria der intended to increase Westinghouse, S.E.A., prices. fact that stressed the Thereafter food contract, “exten representing Westinghouse retained exercised unions three policies.” sought power cafeteria employees, over the sive to meet with com- majority relied The pany price 896. to discuss these increases. large upon portion of the Westinghouse arranged meetings measure the of qual food stated the that contract which the S.E.A. with the caterer in the office ity and prices must reasonable company’s be of and Relations Industrial Westinghouse Representative, Westinghouse could terminate adopt- that but sixty-days’ upon position, ed notice. which it has maintained majority throughout and litigation, of the Board this could that three-judge bargain panel held this court of the of not discuss these matters con- were, cerning prices under the cafeteria them with the because it union case, of power “conditions circumstances fix or to control the statutory employment” of of within the food items served the cafeterias meaning independent of as contractor, these words used the caterer. Although Act,3 subject of bar and representative plant gaining present one between the owner and was par- on occasions he did not plant ticipate any of unions. of the discussions. January statutory phrase posted In 1965 the caterer no- —“terms employment” tices of an increase of of and conditions five cents in the —accord Congress price Board, ing of hot food is intended entrees and an to increase of price and sense” carry-out cent in its “broadest to used cof- According virtually everything caterer, encompasses fee. which to the this in- relationship rising employment crease operat- necessitated bears management’s wage costs seek attributable to which workers to increases granted by However, legislative his agreement. to own union as support tory a result bargaining. does not the Board’s view collective Again best, congressional design. sought negotiate At S.E.A. intent history merely Congress concerning shows that these 2. 159(a) testimony There was suggest some of this title.” 29 U.S. section doughnuts 158(a) (5). and coffee could C. § be ob- bargain collectively” Wagons” tained from “to are “Chuck The words which parked 8(d) explained plant’s parking on or to some extent near section provides: lots. which purposes section, to “For the of this collectively performance is the pertinent statutory language is as obligation of of the mutual ployer follows: representative of the (a) “[8] It shall be an unfair labor meet times at reasonable practice employer— for an good respect faith confer (5) bargain collectively to refuse to hours, wages, other terms and representatives ** with the of his em- employment conditions subject ployees, provisions 158(a). § 29 U.S.C. If, clear, purpose specific as I bar- think § desire to did not enumerate subject

gaining (d) subjects; not show that is to describe a limited area it does bargaining, phrase meant embrace collective management might to unions those decisions are of interest which issue that contrary, employers. Mr. fundamental to direction To the the basic stressed, enterprise corporate im- in his concur- or which Justice Stewart only ring Paper pinge indirectly upon employment Prod- in Fibreboard B„ security Corp. R. U.S. should be from that ucts v. N. L. excluded 398, 408-410, 220-221, 223-224, area. 85 S.Ct. (1964): 13 L.Ed.2d 233 “Applying concepts these case hand, I that an em- do not believe important to note “It subcontracting are, practices ployer’s lim- words are statute words general matter, as a in themselves Relations Labor National itation. employment. Upon any ditions of defi- employer and say does not Act terms short nition upon confer employees are bound expansive, practices the most such either subject interests intangible tangible conditions— wages, specification of them; any person’s employment.” —of conditions hours, and other terms cate- limited employment defines operated Fibreboard, compulsory gory of issues manufacturing plant United at which limiting purpose of bargaining. The represented America of Steel Workers language clear is made statute’s the employees company’s maintenance the present history legislative the of the agreement The working premises. the Wagner originally passed, the As Act. expire when to union was about with the duty the of contained no definition Act union that the informed the bargain collectively. In the to engage an study it to had decided after a independent Act, House bill of the revision the perform these to contractor list of limited a detailed but tained subjects company ex- maintenance services. pressed bargain, duty ex- to light of its the that the view in cluding the In conference all others. negotiation of a new language present for was substituted pointless. termination At the would be specification. the House’s detailed employment the of of the contract the language incorporated a While thus ended and maintenance workers was doing began employees legislation not subcontractor’s as enacted is in the 1947 that under this work. The Board held stringent so as that contained company was un- those circumstances the bill, adopts the it nonetheless House union; der a seeking approach to de- in same basic Appeals of of District Court bargainable is- fine a limited class of Columbia decreed enforcement Circuit sues. Supreme of Board's order employ- phrase pointed “The ‘conditions of Court affirmed. Court susceptible widespread ment’ is no of diverse indus- doubt fact that was a extreme, subject interpretations. practice of At the trial “contracting include the apply phrase could be construed to collective out” within the any subject upon bargaining process which is the contract- insisted and that ing employ- performed prerequisite members for continued out of a work bargaining might appropri- interpretation, ment. Such which of the unit would the Board behind legislative intent of ^[*****] demands, in effect Congress, history. would be place as reflected in this and all contrary compulsion bargain- of which he ately Stewart Harlan, be called a condition of view scope in his expressed joined by in in concurring opinion, harmony Justices with the view employment. Mr. Justice bargaining Douglas from the expressed Fibre- in was deducted most instances Court’s employees’ pay There been had board checks. Chief Justice Warren: years and fourteen no rent increases expanding “We thus in effect were been which had rents hold, mandatory bargaining scope of prevailing rate apparently below now, type as we do ‘con- ownership and employer’s the area. tracting out’ involved in this case —the gave get” “hard control houses replacement employees in the exist- living affecting the employer means of ing bargaining of an unit with those through pow- conditions of independent contractor do the same withholding priv- granting er of work under similar conditions of em- upon ilege fixing terms ployment subject —is Referring to power exercised. could 8(d). collective under § renting company-owned houses Our decision need not and does not en- “It employees, stated: the court them to compass ‘contracting forms of bring them within the is sufficient ‘subcontracting’ out’ or which arise their field of collective daily complex economy.” our materially management ownership U.S. at 85 S.Ct. at 405. employment.” the conditions affects Thus, appears Supreme added.) This (Emphasis F.2d at Court’s decision in Fibreboard lim- conclusion reached particular involving ited situation ownership company’s because job security members the bar- sub- houses involved rental gaining unit which was threatened employ- upon conditions stantial effect merely by the transfer of work to other increasing manda- ment, the rent was but the transfer of work bargaining. subject tory to be premises. However, done on the Mr. surely Justice Stewart noted: “[I]t interesting Fibre- to note does not follow that decision which Corp. R Paper N. L. Products board job security affect is a B., supra, 85 S.Ct. 379 U.S. compulsory bargaining.” “contracting collective held that which it was U.S. at 85 S.Ct. at 409. statutory sub- a there involved was out” bargaining, ject was decided of collective briefing arguing In its subject of Subsequently, case, in 1964. instant apparently the Board is un willing acknowledge this “contracting considered out” was that in determin given whether a matter should be Mine Work- United in District 50. mandatory bargaining deemed a subject, (4 B., ers, R. v. N. L. etc. courts, itself, as well as the Board 1966). an em- held Cir. We there recognized legal have a distinction be was. ployer’s work to subcontract decision subjects tween those which have a mate subject bargaining be- not a significant impact rial or upon wages, signifi- of a there no evidence cause was hours, or other employment, conditions of employees impact from which on the cant and those only indirectly, which are in employer, the Board could find cidentally, remotely related to those subcontract, deciding violated subjects. bargain. pointed out that It was approval depart- Board cites with employees N. L. maintenance no Lehigh R. B. Co., Portland Cement some laid off and that ment had been 1953), F.2d 821 support Cir. ployees of its' refused additional overtime- agreed assignments. conclusion the- instant case involves The court mandatory bargaining a any subject show but we record failed to Board that might wholly distinguishable think that case is cre- loss of work substantial which on its significant impact facts from the instant case. on the- There a adverse ate employer add, however, owned the employees. houses that were which “We employees directly substantial, were rented impact bar- the full-scale charged fixed gaining the rentals. The would rent contended the union although attempts ly necessarily appropriate. Board There is equate In that case the to close to the two cases. a difference a decision between operat- employer consequent layoffs, department Board held that a deep Oregon logging camp ed and decisions to subcontract any woods, deprivations. is far from sizable removed result less serious statutory duty community, degree bar- had a a gaining bar- matter gain flexibly price requirements with the over the should be Ap- provided employer. meals administered to particular needs meet the parently employees depended most of ease.” 358 F.2d at 238. company on kitchens for all their In the instant case we arrive any meals and lacked available alterna- conclusion, which we believe employer tives. set the past pronounce inconsistent with provided the food. party independent contractor third- There court, practically ments that since involved managerial im has some employer position and the to de- pact wages, hours, or other conditions profit, any, rive the from the service. employment, the determination of taking Under those circumstances and mandatory bargain which decisions are into the em- consideration the fact that ing subjects depend upon must whether customers, ployees virtually captive were given subject significant has a or ma easy appreciate it is the Board’s hours, wages, relationship terial cern that collective employment. other conditions mandatory. should be considered caterer, In the inghouse, not West- instant case The case re- before us does not even prices of determined the motely any question job involve se- cafeterias; food and coffee served in the curity any other issue which during Westinghouse employees, traditionally could consider “vital.”4 week, work no more one meal ate than any Nor that the inclu- evidence day cafeterias sion of this issue here within the collec- forty-five percent of fact that less than tive spread framework is a wide- company’s employees used cafe- practice. industrial teria facilities shows that there were Weyerhaeuser Company, Timber The differ- available alternatives. NLRB decided the Board camp lumber bunkhouse ence between a Congress impose said that intended to plant and cookhouse and a cafeteria in upon employers duty collec- employing per- Defense Center over 7500 tively representa- employees’ with their Undoubtedly apparent. sons should be respect tives with matter which Weyerhaeuser employees at most might emerge in the as a bone future compelled were to live at bunkhouse them, provided, contention between eat one at the cookhouse. But not course, that it should a matter in re- be single employee of Center is Defense spect pay, wages, hours, to rates of required permitted either to in the live employment. other conditions of But buy plants, required no one is meals to adopted Weyerhaeuser that rule is cafeterias, at the longer the rule as evidenced the state- employees do not. Supreme ments of the Court in the Fibre- us, In the case before the Board ma- Weyerhaeuser board case. issue engages flight only superficial- jority fancy resembles the issue in a to here example, discriminatory discharges, sory age, 4. For retirement Inland Steel Co. N.L.R.B., Bachelder, (7 N.L.R.B. v. 120 F.2d F.2d 12 A.L.R.2d 240 170 574 1941); seniority rights, (7 1948); grievance procedures, Cir. Knit Oneita Cir. ting Mills, N.L.R.B., Shipbuild Inc. v. Industrial Union of Marine & 375 1967); N.L.R.B., (4 ing 388 Cir. Industrial Workers of America v. su Union of Shipbuilding pra, 620; Marine & at N.L.R.B. Workers of Amer 320 F.2d v. Cen N.L.R.B., (3 tury Manufacturing Co., ica v. F. 320 F.2d Cement 1963) ; 1953). imposition compul Cir. 2d Cir. Weyer- only compulsion bring is the indi- its teria. within situation preference, which decision to desire or we find its own haeuser rule and vidual’s saying there upon unsupported precisely same as conclusions. is be based plant en- compulsion. were says: If the is no tirely “ restaurants, * * surrounded Respondent has cafeterias *. might eating in prefer same individual in- premises are because its which, Board’s under cafeteria dining adequate rea- within a facilities “captive reasoning, him make would plants. did If it of its sonable distance it was No one testified customer.” facilities, it would not not have these any impossible or inconvenient even necessary number to attract able if bring employee home his lunch from to plants. employees man its to buy or coffee his lunch he not to decided eating terms, practical facilities on-site exactly do Thousands at cafeteria. pro- employees and are out held to time, any loss loss of that without spective employees to as an inducement action, wages, disciplinary They Respondent. thus are work for ill effect. employment. prob- conditions of * * simple lem as that. is as po employees are some 7500 Of testimony one word of cafeterias, only We do not find about users tential 2500 Westing- support the conclusion that represented About S.E.A. are the nec- I.B.E.W., attract would be unable to house represented 1400 are by essary to man unrepre number I.U.E., are over provide plants if it cafeteria did not sented, including professionals and man testimony support space. There is no So, agement appears personnel. eating on-site facili- the conclusion that potential se users never 5000 of these any ties are held as an inducement represent out them lected S.E.A. Westinghouse. Board ma- work for thing, them selected and almost 2000 of says: jority then would other unions. Yet the Board two require Westinghouse “The num- fact is that a considerable request specific re union’s S.E.A. bring ber of do not wish to changes specting the reasonableness home, they if their lunches from to be made.” in cafeteria “made or presumably had do look for so would of this said in stat As the author employment elsewhere. Such disagreement his court’s ployees effect substance and enforcing the Board’s order: captive customers of the on-site cafe- * * terias, sup- (Emphasis may happen event “Just what plied.) position in such indicated, negotiations unaccept- As ployees that the em- the conclusion is buy clearly appar- who do lunches at the cafe- able to the union high good quit jobs pay complaining terias would can ent. If this union they bring engage their own lunches in such force bargaining only presumption, unsupported right same cannot sug- by any Certainly logically evidence. no one denied the other two unions gested buy employee Voluntary they an meals should demand it. and resign job. employer at the cafeterias or his Pre- of unsolicited efforts cisely contrary provide primar- is true. Most of the facilities and services buy ily do not their lunches there for the convenienceand accommoda- and, course, they quit plague up of their have not tion of rise jobs. Stripped unsupported presump- of control which cannot guesses, prices attempt tions and of statement and can to exercise such majority anyone pre- only by Board is that control cancella- resort buying giv- fers bringing his meals a cafeteria to tion of the caterer’s contract after ing is, required Being placed his lunch from home for that notice. reason, captive posi- customer of the cafe- in such an unfair and unenviable and Balanced and Board would absurd mischievous. tion as ordered hardly bargaining effective collective should be suitable reward to be a seem objective. Conceivably, the ultimate enforce- for such efforts.- purpose may dis- best formulat- lead to be served of order could ment agreement, applying concept dissatisfaction, and and of strife reasonable full Highland Park case. through the purpose make an enforceable contract writing tional engage charged by the house to produce bers of the Board those this gress The Board calls lations Act to Highland This court ing conditions, job security, pensions, in here employer within the ambit of “conditions 637 Cir. ployees’ representatives. turmoil.” 369 F.2d mere discussion of plates the will serve as a ^[*] carrying tween gain employment.” knowledge Westinghouse cannot “ * * court, subjects equating ^[*] engage The Board would for the collectively is not satisfied in talk an ^[*] enacting of collective employer In the view of the Park ” it was not the intent of Con agreement 1940), long *. The motions. since it does not making such as in that sweep every court, independent Mfg. Co., with S.E.A. since the National Labor Re upon working pointed out, trifles condemned in the requirement grievances wages, hours, the sake of stated: very at 899. late decided that dissenting employee agreements order N. L. R. B. v. Judge Parker, here not basis for the form of act relationship. caterer with about It contem- merely set them. Westing involved to bar- change effect, prices work going mem is to 632, fic- be- was created for be enforced. The Judges (dissenting): policy, there is an understandable into the more pressions.” sciously preme judgment ployment Board’s bargaining. must overruled. ment the Board’s conclusions clusion less cock, sums unanimous) may “express We find in this case against tation court, reported ing subjects “conditions of 51 L.Ed. “[t]here When Enforcement denied. In the SOBELOFF experience NLRB, plainly language it. But it up many unnamed and Court that the from the the Board itself circumstances, which is U.S. enter the is an area discretion and its 636, 85 L.Ed. judges without Chicago, said which outruns danger spacious of 585, 598, 27 employment” at 369 Board’s U.S. is well to the Act mandatory bargaining. knowledge. narrow confines earlier decision allowable area (1907). purpose Phelps no B. plainly CRAVEN, Circuit declare 177, 194, domain ** F.2d we (even condition of em- order & is divided and an sliding remember that S.Ct. Q. reach must an Dodge Corp. in determin- *. analysis and 891, tangled im Ry. covered though As should using intuition 326, [C]ourts 61 S.Ct. area policy.” the Su v. (1941), will uncon lawof imple Board guard temp about Bab 329, not surance, bargaining representa choice of or not seems to us that whether subjects tives or directly in-plant of em- ma cafeteria is a condition terially affecting finding employ ployment “conditions func- involves the fact ment” is formulating ap policy sheer nonsense. function Efforts to tion and the ply theory and, such adopted Board, as the Board of the Labor with all defer- Weyerhaeuser clearly inappropriate brethren, ence to our we adhere discouraged situations should panel where as set out attempted NLRB, reasons for applica such Corp. Elec. are, charged tion petitioner, (4 Cir.1966). F.2d 891

Case Details

Case Name: Westinghouse Electric Corporation v. National Labor Relations Board

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Nov 6, 1967

Citation: 387 F.2d 542

Docket Number: 10545_1

Court Abbreviation: 4th Cir.