E. I. Du Pont De Nemours & Co.

National Labor Relations Board - Board Decisions

Apr 14, 1971

189 N.L.R.B. 753 (N.L.R.B. 1971)

E I. DU PONT 753
E. I. Du Pont De Nemours & Company and Neoprene
Craftsmen Union . Case 9-CA-5553
April 14, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On October 29, 1970, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel filed limited exceptions to the Trial
Examiner's Decision and a supporting brief, and the
Respondent filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith.
The Trial Examiner found that Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally
shutting down its cafeteria on weekends, holidays,
and nights; unilaterally removing a telephone used by
agents of the Charging Party; unilaterally increasing
the price of cigarettes sold in vending machines; and
unilaterally discontinuing the practice of furnishing
soda crackers free of charge to employees utilizing the
cafeteria and placing the crackers in vending ma-
chines at a price of 5 cents per package. Respondent
contends that it bargained to impasse concerning the
partial closing of the cafeteria, and that the other
matters were not working conditions and hence not
mandatory subjects of bargaining, or, if it had a duty
to bargain about these other changes, it satisfied this
duty by discussing them after the Union protested.
We find merit in this contention.
There is no dispute as to the facts. With respect to
i We do not adopt the Trial Examiner ' s comments concerning the
nature of the Charging Party at the time of its formation, the motives of the
parties in this proceeding , or the propriety of the issuance of the complaint
herein
2 The loss was $72,000 in 1966, $86,000 in 1967, and $89,000 in 1968
3 All dates are 1970 unless otherwise mdlcated
the partial closing of the cafeteria, it is clear that,
since 1965, Respondent, in the course of negotiations
with the Union, had expressed concern on several
occasions about the fact that the cafeteria was losing
money and had indicated a desire to close it during
slow periods. In July 1969, the Respondent presented
charts showing that the loss had risen to $99,000 that
year.2 Finally, in February 1970,3 Respondent noti-
fied the Union that it would have to raise prices
substantially or close the cafeteria on weekends,
holidays, and nights, and it presented charts showing
the losses from 1966 to 1969 and figures showing
employee usage of the cafeteria on nights, holidays,
and weekends. As late as February 24, however,
Respondent indicated that its decision concerning the
cafeteria was not final and postponed the partial
closing, originally scheduled for March 1, until March
16. While the Union adamantly opposed the partial
closing, the only alternatives it suggested were
providing the employees with one free meal a day or
opening the cafeteria to the general public, both of
which were rejected as frivolous.4 On February 25, at
another meeting between the parties, Respondent
announced that it had definitely decided to close the
cafeteria on weekends, holidays, and nights.
The increase in the price of cigarettes sold in
vending machines from 30 to 35 cents a pack was
requested in early 1970 by the vendor who owned and
serviced the vending machines in Respondent's
canteen. The vendor pointed out that the wholesale
price of ciagettes was about to go up for the third time
and that, in most places in the area, cigarettes were
selling for at least 35 cents a pack. In addition, in view
of complaints that employees who brought their own
lunches to work were taking too many packages of
crackers which were being furnished free of charge for
use with soup purchased in the cafeteria, the vendor
requested that the packages be placed in vending
machines at a price of 5 cents each. Respondent
acceded to the vendor's requests because it felt that it
had to increase the prices, stop selling the items in
question, or absorb the increased cost, and that it had
absorbed all the cost it could.5
Upon learning of the proposed changes, the Union
protested. Respondent replied that it had no choice,
that all the prices were increasing, and that the
crackers were being misused. The Union pointed out
that the misuse of crackers had been going on for
some time. No agreement was reached, and the Union
filed a grievance concerning the partial closing of the
cafeteria and the price changes. The grievance was
4 Respondent points out that giving away free meals would only
increase the loss of money, while opening the cafeteria to the public was
impractical because the plant was in an isolated area and was engaged in
hazardous work
5 Respondent had previously reduced its share of the profit from the
vending machines from 4 percent to 2 percent.
189 NLRB No. 114
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed at the meeting on March 10, but there was
no further substantive discussion of the changes and
all went into effect as scheduled on March 16.
Under these circumstances, we are persuaded that
the Respondent satisfied whatever statutory obliga-
tion it had with respect to these changes. It is clear
that the Respondent gave the Union adequate notice of
its intention to close the cafeteria on weekends,
holidays, and nights; that it even postponed its action
in the hope of reaching agreement; and that it met and
discussed the increase in vending machine prices
upon request. Since these matters were not fixed by
contract, the changes did not constitute a modifica-
tion of contract terms, and, accordingly, while the
Respondent may have been obligated to discuss the
changes, agreement of the Union was not essential
before they could be put into effect.6 In any event, it is
apparent that the Union proposed only alternatives
which Respondent regarded as frivolous 7 and that the
Union's position was fixed, so that further discussion
of these subjects would have been futile.8 According-
ly, we find that the parties had bargained to impasse
and that Respondent did not violate Section 8(a)(5)
and (1) of the Act by making these changes.
With respect to the removal of the lobby telephone,
the relevant facts are set forth in the Trial Examiner's
Decision. We do not agree with the Trial Examiner's
conclusion that Respondent violated Section 8(a)(5)
and (1) of the Act by removing the telephone without
prior notice to the Union. There is no indication that
Respondent had ever agreed that that particular
telephone was for the use of the Union, or that its
removal affected any employees in any way, directly
or indirectly, or interfered with the Union's perform-
ance of its statutory function of servicing the
collective-bargaining contract. Indeed, Respondent's
employee relations superintendent testified that he
was unaware of the significance of that telephone to
the Union until the latter protested its removal. Under
the circumstances, Respondent was under no obliga-
tion to notify the Union in advance of its intention to
remove the lobby telephone .9 In addition, we note
that, when the Union protested the removal, Respon-
dent made clear its willingness to provide the Union
with telephone service and offered the Union several
alternatives. The Union rejected these proposals and,
in effect, insisted on restoration of the lobby tele-
phone. No agreement was ever reached; the Union
has conducted its business by using a number of
telephones, including personal telephones in the
offices of company officials. It thus seems clear that
on this matter, as on the others discussed supra, the
parties reached a bargaining impasse. Therefore, even
if the removal of the telephone without notifying the
Union were technically a violation of Section 8(a)(5)
and (1) of the Act, a remedial order would not be
warranted . Accordingly, we shall dismiss the com-
plaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
6 Cf. C & S Industries, Inc, 158 NLRB 454, 456-457, 459.
r The Union's former president testified that he had said that there were
probably other alternatives However, he did not state what they were, nor
did he testify that he had done so during negotiations
a We find, contrary to the Trial Examiner , that the filing of the
grievance did not break the impasse , since it did not indicate a possible
change of position which would warrant further discussion Cf Br-Rite
Foods, Inc, 147 NLRB 59, 64-66
9 Proof Co, 115 NLRB 309, and Adolph Coors Co, 150 NLRB 1604,
relied on by the General Counsel, are not to the contrary In Proof Co, the
company , in the course of a general refusal to bargain , removed union
notices from a bulletin board which it had agreed the union could use In
Adolph Coors, a union representative , who was not an employee, was
barred from the plant , this clearly made it impossible for him to carry out
his function of servicing the collective -bargaining contract.
TRIAL EXAMINER'S DECISION
IVAR H. PETERSON, Trial Examiner: This case was tried
before me at Louisville, Kentucky, on July 28 and 29, 1970.
It was initiated by a charge filed on March 2, 1970, and a
complaint issued on April 28, 1970, alleging that the
Respondent, E. I. Du Pont de Nemours & Co., had engaged
in unfair labor practices as defined in Section 8(a)(1) and
(5) of the Act. Briefly stated, the complaint alleges that the
Respondent unilaterally terminated cafeteria services
previously offered on weekends, holidays, and nights; that
Respondent removed telephone services previously provid-
ed to agents of the Charging Party; that the Respondent
unilaterally increased or permitted the increase of the
selling price of a pack of cigarettes; and unilaterally
discontinued the practice of furnishing a food item free of
charge to employees utilizing the cafeteria on Respondent's
premises . In its answer the Respondent denied the
commission of any unfair labor practices.
Upon a careful consideration of the record' and the able
briefs filed by counsel on September 12, and observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, is engaged at
its Louisville, Kentucky, plant in the manufacture and sale
of numerous petroleum, plastic, and other type produces
from its several locations throughout the United States.
This plant is the only one involved in this proceeding.
During the 12 months preceding issuance of the complaint,
a representative period, the Respondent sold and shipped
products valued in excess of $50,000 from the Louisville
plant directly to points outside the State of Kentucky. The
i The motion of counsel for the General Counsel to reopen the record
for the limited purpose of receiving into evidence the Respondent 's letter
dated August 26, not opposed by the Respondent, is hereby granted
E. I. DU PONT 755
Respondent admits and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find
that Neoprene Craftsmen Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Introduction and Issues
Since on or about December 23, 1953, the Respondent
and the Union have been operating under collective-
bargaining agreements, and there is no contention that
Respondent's conduct which is the subject of this litigation
was motivated by any opposition to unionism. The
agreement in effect during the period here in issue was to
expire on September 22, 1970. The principal allegation in
the complaint herein charges the Respondent with having
violated 8(a)(1) and (5) of the Act in four respects: (1) by
unilaterally terminating cafeteria services previously pro-
vided on weekends, holidays and nights; (2) by removing
telephone services previously provided for agents of the
Charging Party; (3) by increasing the selling price of
cigarettes; and (4) by discontinuing the practice of
furnishing soda crackers free of charge to employees
utilizing the cafeteria on Respondent's premises, without
complying with the requirements of Section 8(d) of the Act.
The collective-bargaining agreement contains a provision
for adjustment of grievances and provides an arbitration
machinery for the settlement of "any question as to the
interpretation of this agreement or as to any alleged
violation of the terms of this agreement." The Union
invoked the grievance provision to settle its differences with
the Respondent regarding the alleged unilateral termina-
tion of the previously provided services. The Union
submitted to the Respondent a grievance on February 25,
1970,2 asserting that the Company had "deprived grievants
of benefits and conditions of employment by partial
shutdown of cafeteria and raising food prices in violation of
long-established and current practice and legal and
contractual rights." The Union requested that the first two
steps of the grievance procedure be waived, with which the
Respondent agreed.
While unnecessary to make, it seems reasonable to infer
that the Union may well have been an assisted ERP when
first formed some 25 or 30 years ago; and, as is clearly
evident on this record, at the times here material had
become fully emancipated and confident, at least in its new
leadership, that it could exercise its "muscle" in bargaining
with the Company.
Actually, in my opinion, the issues for decision are, to put
it gently, hypertechnical and, if pressed by the parties,
subversive of basic aims of the Act. Indeed, I think it fair to
say that the controversy here is a "tempest in a teapot" and
that each side, so to speak, is attempting to score "Brownie
points" by using the Board and its agents as a club with
which to strike the other. Why the General Counsel,
considering the Agency's rising case load, would authorize
the issuance of a complaint on this state of facts, escapes
me. But, be that as it may, the technical issues must be
decided, and then, hopefully, we move to new cases
involving problems more meaningful and substantive in
terms of the Act's preamble.
The law is relatively clear that the subject of in-plant
eating facilities is a bargainable matter.3 But whether
particular aspects of such facilities are mandatory or
nonmandatory is, as I read the cases and interpret Section
8(a)(5) (and 8(b)(3)), quite another matter. After 34 years,
the periphery of the Act in this respect is still being pricked
out, on a case-to-case basis. Decisions of the Supreme
Court have not, as yet, established clearly discernible
guidelines. Before attempting analysis, however, it may not
be amiss to observe that it was never my understanding that
the Act was designed to facilitate the emergence or
establishment of an industrial society where any or every
condition of employment-however expansively that term
is interpreted-had to be arrived at by the process of
codetermination.
Within these frames of reference, we next address
ourselves to the necessary findings of fact; observing, in
passing, that as I view the function of the Trial Examiner it
is not to "make" law but, on the contrary, to find the facts,
on the basis of which legal precedent may be reinforced or
new law made, by the Board and/or the courts. We are, as
frequently reminded, not makers of "policy" but merely
administrative judges charged with the responsibility of
resolving conflicts in testimony and, as best we can,
ascertaining and finding the truth. The Board determines4
whether the facts as found amount to a violation of the law,
and the courts of appeal and the Supreme Court decide
whether the findings and conclusions are compatible with
the terms of the Act.
In appraising the stance of the Union, I am reminded of
the passage from Voltaire, where Doctor Pangloss expresses
the view that in the conflict between good and evil the
objective should be to attain the best of all possible worlds.
Or, to quote from Candide, "All is for the best of possible
worlds."
B. Eating Facilities
The employees of Du Pont may purchase lunch in the
following places : (1) in the company- owned and -operated
cafeteria ; (2) out of vending machines owned and supplied
by a contractor ; (3) off the premises . They may, of course,
bring all or some of their lunch from home.
1. Respondent's cafeteria
The plant cafeteria is operated by company employees
(members of the Union) under the direction of a service
superintendent in charge of all eating facilities. The
cafeteria is open from 7:30 a.m. to 4 p.m., Monday through
Friday, day shift only. A variety of food selections are
offered, including plate lunches and short orders. Dudley
Lacy, president of the Union, testified that there were
2 Unless otherwise indicated , all dates refer to the year 1970 F 2d 891 (C A 4), Weyerhauser Timber Company, 87 NLRB 672
3 Westinghouse Electric Corporation, 156 NLRB 1080 (1966), enfd 369 ' Universal Camera Corp v N L R B, 340 U S 474.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately 1,707 employees working at the Louisville
plant. There are four lettered shifts, A, B, C, and D. The
shifts rotate around the clock, changing each week. The
first shift, known as the 12 to 8, has 135 unit employees; the
day shift has approximately 720 employees in the
bargaining unit; the third shift, a midnight shift, has an
estimated 160 unit employees.
2. In-plant vending machines
The vending machines dispensing sandwiches, candy,
cigarettes, and hot and cold drinks are located in the
canteen , which is open around the clock. The vending
machines are owned and serviced by Kentucky Automatic
Merchandisers, Inc., herein referred to as the vendor, under
a written agreement terminable by either party "at any time
after the first year by giving other party (90) days' written
notice."
3. Off-the-premises eating places
There are about three eating facilities in the general area
of the plant, ranging from 2 tenths of a mile to 1.4 tenths of
a mile therefrom. Employees leaving the plant during the
day at lunch time must clock out with the guards and clock
in with them on returning.
Bonny's, with a seating capacity of 50, provides plate
lunches and short orders 24 hours a day and is located 1.4
miles from the plant; Frisch's Big Boy, with a seating
capacity of 80, provides dinner, breakfast, and short orders
from 7 a.m. to 1 a.m., Monday through Friday, and from 7
a.m. to 2 a.m., Saturday and Sunday. Frisch's is located
approximately 1.4 miles from the plant. Rubbertown Cafe,
located 2 tenths of a mile away, has a seating capacity of 38
and is open from 6 a.m. to 2 a.m. Monday through
Saturday and 1 p.m. to I a.m. on Sunday. Rubbertown
Cafe provides breakfast, plate lunches, short orders and
alcoholic beverages. There was testimony of Lacy on cross-
examination that the price of cigarettes at Rubbertown and
Frisch's was 40 cents. The price of cigarettes at the
Shopping Mart is 28 cents; and the company operated
canteen charges 35 cents.
4. Events leading to partial shutdown of cafeteria
services
In 1965 the Union and the Respondent were parties to a
collective-bargaining agreement which was effective
through February 14, 1967. The Union was out on strike in
February 1966 for 19 days. On March 6, 1966, the Union
and Respondent reached a supplemental agreement which
was put into writing and signed October 13, 1966. During
the 1965 negotiations the Union requested a distribution of
profits from the vending machines. Respondent indicated
that because of the high cost of operation, it would like to
shut down the cafeteria on nights, holidays and weekends.
However, the 19-day strike, the intervening union election
in March 1967, and the plant explosion August 25, 1965,
prevented any further discussion of the proposed cafeteria
shutdown.
On March 9, 1966, the Respondent and Union discussed
food problems, at which time it was indicated by the Union
that all strike-settlement issues were acceptable except an
issue involving Williams Box Lunch, which operated a
truck driven by Reece Watson bringing to the plant at
lunch hours hot food served to the employees. Watson had
refused to cross the picket line during the strike. After the
strike was settled, the Company refused to allow Williams
Box Lunch to come back on the plant premises. In July
1966, a grievance was presented to the Respondent
protesting its refusal to let Williams Box Lunch return.
However, the Respondent refused to allow the return of
that food service to the plant premises.
On January 24, 1967, McConnell, labor relations
supervisor, displayed charts dated November 16, 1966,
showing the Company's problems, which included food
vending. In the meeting that followed, representatives of
the Union made known their displeasure concerning
rumors of impending price increases on food. Charles
Osborne, the newly elected union president, brought to the
Respondent's attention the numerous complaints received
by the Union regarding the food service in the canteen. The
Union was notified in July 1967, by Mr. McConnell, that
the caterer (Servomation) 5 was raising prices.
On October 11, 1967, Servomation was replaced by a new
vendor, Kentucky Automatic Merchandisers, Inc. Johnny
A. Stephens, assistant superintendent of employer relations,
stated that there would be a little difference in price, but
betterment would be reflected in variety, quality, and
service. Once Kentucky Automatic Merchandisers, Inc.,
was in operation, the Union indicated that there were very
few complaints about its service.
In July 1969 the Respondent represented by Cressely,
plant manager, explained to representatives of the Union
that the cafeteria was losing money and that it was costing
the Company $7,000 per month to operate. There were
charts presented showing losses of $99,000 in 1969. However,
no agreement was reached concerning closing the cafeteria.
On September 5, 1968, Osborne, representing the Union,
requested an increase in meal tickets from $1.25 to $1.75.6
Osborne indicated that the increase was requested to offset
the increased cost for vending machine products. The meal
tickets were increased to $1.50 and that ended the discussion
on the subject of meal tickets.
On February 9, 1970, at an unscheduled meeting, Bill
Cecil presented charts showing losses from 1966-1969,
including figures showing employee usage of the cafeteria
on nights, holidays, and weekends. The charts showed the
annual operating loss of the cafeteria in 1969 as $99,000. The
chart further indicated that by closing the cafeteria on
nights, holidays, and weekends, 32 percent of the operating
loss could be averted.7
On February 24, 1970, the Respondent informed the
5 Servomation is a continuation of a concern known as Sandy's Sandy's used or cashed
was the caterer operating the vending machines which later merged with
Servomation and provided food services until replaced by Kentucky
7 Average number of customers served in 1969
Weekends and holidays 40
Automatic Merchandisers , Inc., October 11, 1967 Shift # 1 34
6 People who are requested or permitted to work overtime are given a Shift #3 49
meal ticket by the Company It has a value of $1 25 presently and can be Days (M-F) 271
E. I. DU PONT 757
Union that it either would have to raise prices substantially
or shut down the cafeteria on nights, weekends, and
holidays. The planned shutdown was tentatively set for
March 1, 1970, but was changed to March 16, 1970, to
allow for further discussion. Employees were notified of the
change in hours by a question-and-answer sheet. All
questions were answered by supervisory personnel.
The union committee did not agree with the shutdown
and indicated that they felt the Company had committed
an unfair labor practice by closing the cafeteria. McConnell
asked for alternatives in light of the Company's effort to cut
expenses. The Umon suggested the following: (1) that the
Company give the employees free meals; (2) that the plant
open up its gates and invite people in to use its facilities.
McConnell indicated he considered the suggestions frivo-
lous, since it was understood by the Union that the
Respondent was attempting to cut expenses, and that the
relatively isolated location of the plant made the second
suggestion absurd.
On February 25, 1970, the Union presented the
Respondent with a grievance report indicating that the
Company had deprived grievants of benefits and condi-
tions of employment by the partial shutdown of cafeteria
services, and claiming that raising food prices was in
violation of longstanding contractual rights. The grievance
was received by McConnell and denied on the basis of
"reasons discussed at previous meetings."
5. Removal of telephone used by
agents of Union
Before December 1969 the Union had been using
regularly a telephone located in the lobby of the
administration building. This area had been used as a union
reception room by officials of the Union. McConnell
testified that there was a drive on to cut back on the
number of telephones throughout the plant. The cost per
month from 1967-68 was $5,800, but by January 1970, the
cost had decreased to $3,800. In its effort to cut expenses the
Respondent removed the telephone used by the Union in
the administration building. Osborne, union president,
protested to McConnell, and the latter offered the Union
the use of telephones located in the paymaster's office and
in the disaster room. However, the Union refused to accept
either offer. Thus, in the complaint, it is alleged that the
Respondent unilaterally terminated and removed free
telephone service previously provided on the Respondent's
premises.
CONTENTIONS AND CONCLUDING FINDINGS
It is the contention of the General Counsel that the
Respondent had a duty to bargain with the Union
concerning changes in the hours of operation of its plant
cafeteria and of certain price increases and changes in its
vending service operation. General Counsel further alleges
that Respondent refused to bargain in violation of Section
8(a)(5) of the Act by unilaterally removing the telephone
used by the Union's bargaining committee members in the
plant's administration building. Finally, the General
Counsel submits that the Board should not defer to the
contractual grievance procedure but should proceed to a
determination on the merits.
With respect to the allegation that the Respondent had a
duty to bargain on changes in its cafeteria operation the
Respondent in its brief contends that "following the
impasse in bargaining reached February 25, 1970, the plant
put into effect only those changes it had discussed with the
Union." This contention is clearly lacking in merit.
Addison M. McConnell, employee relations superintend-
ent, testified that in conversation with Mr. Coffield, a chief
steward, he advised that the target date for closing the
cafeteria was March 1. However, when "we saw Mr.
Osborne's reaction on the 23rd, we said we were changing
that date to allow more time for discussion and we would
set our target date for March 16th." The Respondent
alleges that on February 25, 1970, the decision was made to
shut down the cafeteria on nights, weekends, and holidays.
Furthermore, the Respondent contends that an impasse
was reached at this meeting. Neither the bargaining history,
nor the facts, indicate that an impasse was reached.
McConnell's testimony clearly indicates that the Respon-
dent changed the closing date from March 1 to March 16,
1970, to permit further discussion.
Furthermore , even if we assume that an impasse was
reached on February 25, 1970, the grievance petition
Osborne presented to McConnell on that same date served
to reopen discussions and thus break the deadlock. The
factual situation herein is quite similar to that in
Westinghouse Electric Corporation, 156 NLRB 1080, enfd.
denied 387 F.2d 542 (C.A. 4). The Board, in adopting the
decision of the Trial Examiner, held that the Employer was
required to bargain on request by a certified union over
prices charged in the cafeteria. Moreover, here the
testimony of John Nell reveals that at the next meeting,
held March 10, 1970, the parties discussed the grievance
petition and the increased prices on vending machine items.
At no time was any reference made to the impasse allegedly
reached February 25, 1970.
With respect to these contentions, I am persuaded that
the Respondent's action in partially terminating cafeteria
services by closing on Saturdays, Sundays, and holidays
was in violation of Section 8(a)(5) and (1) of the Act, under
the circumstances here involved. The Board in Weyerhauser
Timber Company, 87 NLRB 672, held that eating facilities
maintained by an employer on its premises, including the
price of meals, are working conditions under Sections 8(d)
and 9(a) of the Act. The Board ruled that meals furnished
by Weyerhauser to its employees at its saw mill and logging
camps are "conditions of employment" and "wages" within
the meaning of Section 9(a) of the Act. The Board further
stated that it did not agree with the narrow interpretation of
"conditions of employment" because "we believe that term
was meant to encompass many noncompulsory aspects of
the employer-employee relationship."
In Westinghouse Electric Corporation, 156 NLRB 1080,
the Board applied its holding in Weyerhauser to food sold in
an in-plant cafeteria. The Board held that on-site eating
facilities are held out to the employees as an inducement to
work, and, thus, are conditions of employment.
In a more recent case, McCall Corporation, 172 NLRB
No. 55, 69 LRRM 1187, the Board held that the price of
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
food sold in vending machines was a mandatory subject for
collective bargaining under the National Labor Relations
Act. However, this decision was denied enforcement by a
panel of the Fourth Circuit Court of Appeals. With
all due respect to the Fourth Circuit Court's decision, as a
Trial Examiner of the Board my decision must be
consistent with established Board precedent .8 Thus, unless
the Board changes its view or the Supreme Court rules
differently, I must follow Board precedent.
Counsel for the General Counsel contends that the
unilateral actions of the Respondent in changing its
vending service operation, and removing a telephone
previously used by members of the bargaining committee,
were "conditions of employment" requiring collective
bargaining. The Respondent submits that while the Board
and the courts have given a considerably broad interpreta-
tion to "terms and conditions of employment," but states
that this was done with reservation, citing Fibreboard Paper
Products Corp. v. N.L.R.B., 379 U.S. 203. The Supreme
Court in Fibreboard upheld the Board's decision that
subcontracting was a mandatory subject of bargaining. The
Court stated that whether a subject is one requiring
mandatory bargaining must depend on "whether a given
subject has a significant or material relationship to wages,
hours or other conditions of employment."
In another section of the opinion the Supreme Court,
quoting from N.L.R.B. v. Jones & Laughlin Steel Corp., 301
U.S. 1, 42-43, indicated that, "[T]he Act was framed with
an awareness that refusals to confer and negotiate had been
one of the most prolific causes of industrial strife." The
Court further stated that the Board's Fibreboard decision
promotes the fundamental purpose of the Act by bunging a
problem of vital concern to labor and management within
the framework established by Congress as most conducive
to industrial peace.
In Order of Railroad Telegraphers v. Chicago & N. W.R.R.
Co., 362 U.S. 330, the Supreme Court, referring to
legislation affecting railroad and railroad employees, stated
that " . . . the scope of subjects about which workers in
railroads may or must negotiate and bargain collectively"
has been broadened. The Courts have found that under
the National Labor Relations Act the mandatory subjects
of collective bargaining include the elimination of jobs
through subcontracting,9 employee housing,10 price dis-
count practices," union security, seniority, and
grievances,12 Christmas bonuses,13 enviromental matters
relating to health,14 retirement, and pension plans,15 puce
of meals charged to employees in company-operated
cafeterias,16 and the puce of meals charged in a cafeteria
operated by an independent caterer.17
Finally, in deciding this case, it is necessary that all the
alleged violations be considered together. Simultaneously
with the partial closing, the price of cigarettes in vending
machines was raised, and free crackers were placed in
vending machines at 5 cents per package. Respondent's
reply to the Union's objection was that "everything was
going up." I am persuaded that a fair appraisal of the
record and the course of the negotiations from 1965 to
February 23, 1970, supports a finding that the Company
violated the Act by unilaterally terminating cafeteria
services on weekends, holidays, and nights; increasing the
selling price of cigarettes; discontinuing the practice of
furnishing free crackers; and removing telephone service
provided agents of Charging Party. Accordingly, I conclude
that Respondent violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Neoprene Craftsmen Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. At all times, Neoprene Craftsmen Union has been
and is the exclusive representative of all employees in the
following appropriate bargaining unit within the meaning
of Section 9(a) of the Act:
All employees classified as powerhouse and refrigera-
tion plant employees, chief operators, shift leaders, fire
department employees, cafeteria employees and count-
er attendants, but excluding all office and clerical
employees, chemical supervisors, technical engineers,
assistant technical engineers , draftsmen, chemists,
nurses and hospital technicians, general foreman,
foreman, fire chief, guards, and all other supervisors
and professional employees as defined in the Act.
4. By refusing on and since February 25, 1970, to
bargain collectively with Neoprene Craftsmen Union as the
exclusive representative of its employees in the aforesaid
bargaining unit, concerning plant cafeteria closing, removal
of phones, and increasing the prices of vending machine
items, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (5) of the
Act, I shall recommend that the Respondent cease and
desist therefrom and take appropriate affirmative action in
order to effectuate the policies of the Act. I shall also
recommend that the Respondent notify the Union of any
changes in operations affecting cafeteria prices, hours or
days of shutdown, and that it bargain with respect to these
changes upon a specific request of the Union. Westinghouse
Electric Corporation, supra, 369 F. 2d at 895, 897-898.
[Recommended Order omitted from publication.]
8 Prudential Insurance Agents, 119 NLRB 768, Ranco, Inc, 109 NLRB
998, fn.8, Lenz Co, 153 NLRB 1399
9 Fibreboard Paper Products Co v N L R.B, 379 U S 203
10 N L R B v Lehigh Portland Cement Co, 205 F.2d 821, 823
11 N L R B v. Central Illinois Public Service Company, 324 F 2d 916
(C.A. 7)
12 N L R B v Andrew Jergens Co, 175 F 2d 130, 133 (C.A 9), N L R B
v. Proof Company, 242 F 2d 560 (C A 7), cert. den 355 U.S 83.
13 Niles-Bement-Pond Company, 97 NLRB 165, enfd. 119 F.2d 713 (C A
2).
is N L. R B v. Washington Aluminum Company, 370 U.S. 9.
15 Inland Steel Company, 77 NLRB 165, enfd 119 F.2d 713 (C.A. 2).
16 Weyerhauser Timber Company, 87 NLRB 672.
17 Westinghouse Electric Corp v N LR B, 387 F.2d 542 (C A 4)