Rockwell International Corporation

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1346 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR BOARD
Rockwell International Corporation and United
Steelworkers of America, Local 8031. Cases 27-
CA-6320 and 27-CA-6477
March 31, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On July 2, 1981, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, the Union and the
General Counsel filed exceptions and supporting
briefs. Respondent filed a brief in support of the
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The General Counsel alleges that Respondent
violated Section 8(a)(5) and (1) of the Act by refus-
ing to bargain with the Union prior to increasing
in-plant cafeteria and vending machine prices on
July 23 and December 3, 1979. For reasons dis-
cussed below, we shall reverse the Administrative
Law Judge and find the alleged violations.
The facts are not in dispute. Respondent is en-
gaged in the manufacture of nuclear weapon com-
ponents at its Rocky Flats plant near Golden,
Colorado. The location is remote and virtually all
the employees use a main cafeteria, several smaller
cafeterias, and vending machine areas for their shift
meals and snacks. Food and cigarettes are supplied
to Respondent's cafeterias and vending machines
by ARA Food Service under a comprehensive
written service contract.
The Union represents the approximately 1,800
production and maintenance employees at Re-
spondent's plant. A collective-bargaining agree-
ment, effective from October 1, 1978, to October 4,
1981, existed between the parties at the time of the
complaint. This was the parties' second agreement.
The earlier agreement, effective from 1975 to 1978,
replaced an agreement between the Union and
Dow Chemical Company, Respondent's predeces-
sor at the Rocky Flats facility.
The current contract repeats verbatim the fol-
lowing provision contained in the two previous
agreements:
260 NLRB No. 153
Article XVII-Duration
The Company and the Union acknowledge
that during negotiations which resulted in this
Labor Agreement, each party had the unlimit-
ed right and opportunity to make demands and
proposals with respect to any subject or matter
not removed by law from the area of collec-
tive bargaining, and that the understandings
and arrangements arrived at by the parties
after the exercise of that right and opportunity
are set forth in this Agreement. Therefore, the
Union agrees that the Company may take the
appropriate action concerning any matters not
covered by this Agreement which involve the
expeditious management of the Plant. If such
actions effect a significant change in well-de-
fined or long-established working conditions
and are legally required subjects of collective
bargaining, the Union may request negotiations
on them.
With respect to any subject or matter not
specifically referred to or covered in this
Agreement which was within the knowledge
of both parties at the time they negotiated or
signed this Agreement, the parties agree that
such subject or matter will not be the subject
of negotiations during the term of this Agree-
ment unless mutually agreed to by the parties
or unless there is a change in working condi-
tions as discussed above ....
Until the present controversy arose, the parties
had never bargained about the provision of in-plant
food services. James Kelly, servicing staff repre-
sentative of the Steelworkers International, had be-
lieved that the Union had no legal right to request
bargaining on this subject because two United
States courts of appeals had ruled that cafeteria and
vending machine prices were not mandatory sub-
jects of bargaining.'
In early July 1979, Respondent's personnel direc-
tor, Bernard Wozniak, told Union President Leland
Tallman that the price of coffee would be in-
creased 5 cents per cup. Based on information from
Kelly, Tallman notified Wozniak that under the Su-
preme Court's recent decision in Ford Motor Co.
(Chicago Stamping Plant) v. N.L.R.B., 441 U.S. 488
(1979), Respondent was required to comply with
the Union's request to bargain over any anticipated
price increases in cafeteria items. Wozniak denied
any knowledge of that case and of a duty to bar-
gain. In a July 4, 1979, letter to Respondent, Tall-
man repeated his request for bargaining on "all
I McCall Corporation v .L.R.B., 432 F2d 187 (4th Cir 1970);
N.L.R B. v. Package Machinery Company, 457 F.2d 936 (Ist Cir 1972).
1346
ROCKWELL INTERNATIONAL CORPORATION
prices in the cafeteria and vending under A.R.A."
On July 17, Respondent denied this request in a
letter stating that, under the zipper clause in article
XVII of the agreement, there had not been a
change in working conditions and therefore no ne-
gotiations were warranted. In this same letter, it
notified the Union that the change in coffee prices,
which had been temporarily suspended following
the Union's request for bargaining, would be effec-
tive July 23. This increase was followed by an ap-
proximately 10-percent across-the-board increase in
the price of cafeteria and vending services unilater-
ally implemented on December 3, 1979.
The Administrative Law Judge found that Re-
spondent had no duty to bargain over food price
increases under the circumstances described and
consequently did not violate the Act by refusing to
bargain. In so finding, the Administrative Law
Judge acknowledged that the court's opinion in
Ford Motor Company established that the in-plant
food prices at issue here are a mandatory subject of
bargaining, but he reasoned that the zipper clause
in article XVII of the contract constituted an effec-
tive waiver of the Union's right to request bargain-
ing about cafeteria and vending machine prices for
the duration of the contract.
The rationale expressed by the Administrative
Law Judge in finding a contractual waiver by the
Union runs directly contrary to well-established
Federal labor law. An employer violates its duty to
bargain under Section 8(d) of the Act when it uni-
laterally changes employment conditions without
first giving the employees' collective-bargaining
representative prior notice and adequate opportuni-
ty to negotiate, in the absence of certain circum-
stances excusing or justifying unilateral action. 2
The duty to bargain continues during the existence
of a bargaining agreement concerning any manda-
tory subject of bargaining which has not been spe-
cifically covered in the contract and regarding
which the union has not clearly and unmistakably
waived its right to bargain.3 In fact, the Court's
opinion in Ford Motor Company affirmed the
Board's underlying finding that the respondent
there violated Section 8(a)(5) of the Act by refus-
ing to bargain about unilateral increases in food
prices made during the terms of a collective-bar-
gaining agreement which did not specifically cover
the subject of those prices. 4
2 NL.RB. v. C & C Plyvwood Corp., 385 U.S. 421, 425 (1967); N.L.R.B.
v. Katz e al., 369 U.S. 736, 743 (1962).
' N L Industries, Inc., 220 NLRB 41, 43 (1975), enfd 536 F.2d 786 (8th
Cir. 1976); The Jacobs Manufacturing Company, 94 NLRB 1214 (1951),
enfd. 196 F.2d 680 (2d Cir. 1952).
' Ford Motor Company (Chicago Stamping Plant), 230 NL.RB 716
(1977). Waiver of the right to bargain was not an issue in that case We
categorically disavow each implication in the Administrative Law
Judge's Decision that the Court's opinion in Ford Motor Company modi-
We find no support for the Administrative Law
Judge's finding that the Union waived its right to
bargain about in-plani food price increases during
the term of the 1978-80 collective-bargaining
agreement. On the contrary, by the plain language
of article XVII of the agreement the Union has re-
served the right to request negotiations upon such
actions that "effect a significant change in well-de-
fined or long-established working conditions and
are legally required subjects of collective bargain-
ing." We find that this reopener language on its
face applies to the prices of in-plant food services
which have been provided for at least 4 years and
are mandatory subjects of bargaining.
Moreover, we find that, even assuming that arti-
cle XVII does not operate as an express reservation
by the Union of its right to demand bargaining
over this mandatory subject of bargaining, it cer-
tainly does not amount to an express waiver of that
statutory right. It is well established that such a
waiver will not lightly be inferred in the absence of
clear and unequivocal language. Such language is
not present in this case. Thus, where, as here, an
employer relies on a purported waiver to establish
its freedom unilaterally to change terms and condi-
tions of employment not contained in the contract,
the matter at issue must have been fully discussed
and consciously explored during negotiations and
the union must have consciously yielded or clearly
and unmistakably waived its interest in the matter.5
Regardless of whether the Union had knowledge
before July 1979 of its right to demand bargaining
on this subject, as the Union contends it did not,
the subject of cafeteria and vending food prices
was never discussed during the 1978 contract nego-
tiations. We therefore find that the Union did not
consciously yield its statutory right and that the
language in article XVII does not amount to an ef-
fective waiver of the Union's right to request bar-
gaining on changes in the in-plant food prices. 6
Accordingly, having found that Respondent had
a continuous duty to bargain over the matter of in-
creases in the in-plant food prices, we conclude
that Respondent's refusal to bargain over the price
increases on July 23 and December 3, 1979, violat-
ed Section 8(a)(5) and (1) of the Act.
fled or cast doubt upon the above-stated bargaining pnnciples as applied
to the subject of in-plant food service prices.
'See Angelus Block Co. Inc., Amari. Inc., 250 NLRB 868, 877 (1980),
and cases cited therein.
' We do not find determinative, as Respondent contends, the fact that
it was not until the approximately fifth increase in the in-plant food prices
that the Union requested bargaining. It is well settled that even past fail-
ure to assert a statutory right does not estop subsequent assertion of that
right Eg. Peerlesi Publications. Inc. (Pottstown Mercury), 231 NLRB 244,
258 (1977). enforcement denied on other grounds 636 F2d 550 (D C. Cir
1980)
1347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act representing a
unit of all production and maintenance employees
at Respondent's plant in Golden, Colorado.
3. Respondent and the Union have at all material
times been parties to a collective-bargaining agree-
ment covering the employees in the above-de-
scribed unit.
4. By refusing, on and since July 23 and on and
since December 3, 1979, to bargain collectively
with the Union as the exclusive representative of
its employees in the aforesaid bargaining unit con-
cerning in-plant vending machine and cafeteria
price changes made on those two dates, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and
(5) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has unlawfully
refused to bargain with the Union concerning
changes in cafeteria and vending food prices, we
shall order that it cease and desist therefrom and
take certain affirmative action to effectuate the
policies of the Act. Although the Union has re-
quested an order rescinding the July 23 and De-
cember 3, 1979, price increases, the Board has con-
sistently held, as in Westinghouse Electric Corpora-
tion, 156 NLRB 1080, 1081 (1966), enforcement
denied on other grounds 387 F.2d 542 (4th Cir.
1967), that "[i]t is sufficient compliance with the
statutory mandate . . . if management honors a
specific union request for bargaining about changes
made or to be made." Accordingly, our Order will
not require Respondent to bargain about every pro-
posed price change in food prices before putting
such change in effect. We will require Respondent
to bargain only about such price changes which are
determined unilaterally and then only upon a re-
quest by the Union.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Rockwell International Corporation, Golden, Colo-
rado, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing, upon request, to bargain collective-
ly with United Steelworkers of America, Local
8031, as the exclusive bargaining representative of
a unit of all its production and maintenance em-
ployees at its Golden, Colorado, plant with respect
to changes in food prices in the vending machines
and cafeterias.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to any changes, now in effect or here-
after made or proposed, in food prices charged in
the vending machines and cafeterias.
(b) Post at its plant in Golden, Colorado, copies
of the attached notice marked "Appendix." 7 Copies
of said notice, on forms provided by the Regional
Director for Region 27, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 27,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
? In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
1348
ROCKWELL INTERNATIONAL CORPORATION
WE WIL. NOT refuse to bargain collectively
with United Steelworkers of America, Local
8031, as the exclusive representative of our
employees in the bargaining unit of all produc-
tion and maintenance employees at our
Golden, Colorado, plant with respect to
changes in food prices in the vending ma-
chines and cafeterias.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WIL L, upon request, bargain collectively
with the above-named Union as the exclusive
representative of all our employees in the
aforesaid unit with respect to changes, now in
effect or hereafter made or proposed, in food
prices charged our employees in the vending
machines and cafeterias.
ROCKWEll INTI RNATIONA.L CORPO-
RATION
DECISION
STATEMENT OF THE CASE
DAVID G. HEII.BRUN, Administrative Law Judge: This
case was heard at Denver, Colorado, on March 10, 1981,
based on a consolidated complaint alleging that Rock-
well International Corporation, herein called Respond-
ent, violated Section 8(a)(1) and (5) of the Act by refus-
ing to bargain with United Steelworkers of America,
Local 8031, herein called the Union, about a decision to
increase cafeteria prices and by later unilaterally increas-
ing such cafeteria prices.
Upon the entire record, my observation of witnesses,
and consideration of post-hearing briefs filed by the Gen-
eral Counsel and the Union as well as oral summation
made at the close of hearing by Respondent, I make the
following:
FINDINGS OF FACT AND RESULTANT CONCLUSION
OF LAW
Respondent employs approximately 3,750 persons at its
Rocky Flats plant near Golden, Colorado, with approxi-
mately 1,800 of these represented by the Union in a pro-
duction and maintenance unit.' The location is remote
and virtually all employees utilize a main cafeteria, sever-
al smaller "cafeteens," and vending machine areas for
their shift meal or for snacks. A collective-bargaining
agreement, effective from October 1, 1978, to October 4,
1981, exists between the parties. This is the second com-
plete agreement they have had, although the predecessor
I The facility produces nuclear weapons components under an operat-
ing contract with the United States Department of Energy, and Respond-
ent annually derives in excess of S50,000 for performance of its services.
On these admitted facts I find Respondent to be an employer engaged in
commerce within the meaning of Sec. 2(6) and (7) of the Act, and other-
wise that the Union is a labor organization within the meaning of Sec
2(5).
document spanning 1975-78 was negotiated in replace-
ment of a still earlier contract that Dow Chemical Com-
pany, the former employer at this site, and the Union
had and which but for the substitution would have run
to 1976. The current contract includes the following pro-
visions germane to this case:
Article VII--Premium Pay Provisions
* * . * *
SECTION 5. Overtime Meals
A. The Company shall provide to any employee
who is requested to and does work in excess of ten
consecutive hours after the start of his regularly
scheduled hours, and every four hours of work
thereafter, with a choice of a meal or to stay on the
job and be paid $2.50 in lieu of the meal.
Article XVI-Savings Clause
Should any part hereof or provision herein be
rendered or declared invalid by reason of any exist-
ing or subsequently enacted legislation or by any
decree of a court of competent jurisdiction, such in-
validation of such part or portion of this Agreement
shall not invalidate the remaining portions hereof,
and they shall remain in full force and effect.
It is further agreed that the Company and Union
shall meet to resolve these portions thus invalidated.
Article XVII-Duration
The Company and the Union acknowledge that
during negotiations which resulted in this Labor
Agreement, each party had the unlimited right and
opportunity to make demands and proposals with
respect to any subject or matter not removed by
law from the area of collective bargaining, and that
the understandings and arrangements arrived at by
the parties after the exercise of that right and op-
portunity are set forth in this Agreement. There-
fore, the Union agrees that the Company may take
the appropriate action concerning any matters not
covered by this Agreement which involve the expe-
ditious management of the Plant. If such actions
effect a significant change in well-defined or long-
established working conditions and are legally re-
quired subjects of collective bargaining, the Union
may request negotiations on them.
With respect to any subject or matter not specifi-
cally referred to or covered in this Agreement
which was within the knowledge of both parties at
the time they negotiated or signed this Agreement,
the parties agree that such subject or matter will
not be the subject of negotiations during the term of
this Agreement unless mutually agreed to by the
1349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties or unless there is a change in working condi-
tions as discussed above ...
Food and cigarettes are supplied to Respondent's cafe-
teria and vending machine facility by ARA Food Serv-
ices under a comprehensive written service contract. 2
Cafeteria prices to employees were a reflection of ARA's
profit objectives under this contract, while Respondent
augmented the general phenomenon of making food
available to employees on the premises by an annual sub-
sidy that was estimated to have gradually risen from
$150,000 to $270,000 over the years 1975-80.
In early July 1979 Union President Leland Tallman
was verbally informed by Wozniak that the price of
coffee would be increased 5 cents. At this point in time
Tallman had but recently been told by James Kelly,
servicing staff representative of the Steelworkers Interna-
tional, that the United States Supreme Court's recent de-
cision in Ford Motor Company (Chicago Stamping Plant)
v. N.L.R.B., 441 U.S. 488 (1979), empowered the Union
to request bargaining on anticipated price rises in cafete-
ria items. Kelly in turn had up to then understood from
Bureau of National Affairs (BNA) reports of past years
that certain United States Courts of Appeals decisions
had excluded cafeteria prices as a mandatory subject for
bargaining. In this context Tallman responded to Woz-
niak's advice by referring to the Ford case, testifying that
the latter only admitted awareness but not familiarity
with it. Tallman wrote to Wozniak on July 5, 1979, and
was answered on July 17 in the following respective ex-
change of correspondence:
In regards to the pricing of all cafeteria and
vending items. It is the position of the United Steel-
workers of America Local 8031, based on a deci-
sion of the U. S. Supreme Court and Art. XVI of
the Labor Agreement that all pricing is now a ne-
gotiated item. The Union at this time is ready to sit
down and negotiate all prices in the cafeteria and
vending under A R A.
* * * *
The Company has given consideration to your
request that we negotiate all cafeteria and vending
prices. You have indicated that the Company's obli-
gation is established by Article XVI of the Labor
Agreement and a decision of the Supreme Court,
presumably Ford Motor vs. N.L.R.B.
The Company does not agree that either Article
XVI or the Ford decision create an obligation to ne-
gotiate vending or cafeteria prices at this juncture.
It feels that Article XVII of the Labor Agreement
expresses the obligations of the Company and the
Union to live with the bargained Agreement for the
stated duration. The Company does not feel that
there has been a change in working conditions
which warrants bargaining and does not agree to
' The document itself is part of this record only as a rejected exhibit
Its highlights and effectiveness are shown in the testimony of the present
personnel director, Bernard Wozniak
open negotiations on cafeteria and vending prices as
requested by the Union.
Also, please consider this as notification that the
Company is implementing the 5 cent per cup price
increase for coffee in cafeterias and vending ma-
chines effective July 23, 1979. This increase is the
one that was originally scheduled for July 9, 1979
but was suspended due to your expressed concerns.
The July increase in coffee price was effectuated, and
later in the year further increases to the price of several
items occurred in keeping with the following letter of
Wozniak to Tallman dated November 27, 1979:
In view of the increased costs of food and labor
since the last increase in October 1978, it is neces-
sary for the Company to increase the prices of cafe-
teria and vending services. This increase will be im-
plemented on December 3, 1979 and represents ap-
proximately a 10% across-the-board increase.
The attached sheets detail the specific price in-
creases for both cafeteria services and vending ma-
chines.
The initiating unfair labor practice charge was soon
filed. Procedurally the dispute was first deferred for arbi-
tration, and when this proved inconclusive it was finally
docketed for hearing. As such time passed the parties
dealt further with the subject of constantly rising food
costs in a series of meetings and discussions spanning
mid-1980-early 1981. In view of the holding I reach on
the basic merits of the complaint it is unnecessary to de-
scribe this phase in any detail.
Ford, supra, is readily conceded as the touchstone of
this case. In that holding the Court's main opinion traced
legislative history and statutory construction in the area
of mandatory bargaining subjects, holding that no infir-
mity was present in the Board's view that "in-plant food
prices and services" are such subjects. In its reviewing
process the Court observed that the topic is germane to
the working environment, that the trend in labor con-
tracts is to expressly deal with the subject, that it illus-
trates a potentially typical dispute best "funneled" into
collective bargaining, and that assumptions of national
labor policy are that "constantly shifting food prices can
be anticipated and provided for" by negotiations with
"more, not less, collective bargaining" as the remedy for
any heightened frequency and intensity of such disputes.
In contentions joined and relied upon by the Union,
the General Counsel argues fundamentally that Ford en-
visions a "continuing nature" to the collective-bargaining
process in this area, and that no conscious waiver had
ever stripped the Union of its right to midterm bargain-
ing on the subject. Respondent's principal contention is
that Ford is silent as to "timing" of such bargaining, and
cannot be read as to destabilize the 1978-81 contract in
view of its definitive article XVII language.
I favor Respondent's view of the issue. It is first note-
worthy in Ford that the Court declines to make any con-
nection between the general theme of in-plant food
prices being a mandatory subject for bargaining and the
existence or content of an applicable collective-bargain-
1350
ROCKWELL INTERNATIONAL CORPORATION
ing agreement. The entire holding is keyed to the funda-
mental point of whether something as arguable as the
price paid by employees for the food they eat while hap-
pening to be at work is a term and condition of employ-
ment within the meaning of Section 8(d). In reaching its
Ford decision the Court ranged over numerous factual
points of the case, including that "very few" of the 3,600
workers left the plant to eat, that among those who
brought food spoilage and vermin were problems, and
that employee concern with food pricing was so pro-
nounced that over half had participated in a short boy-
cott of the service.
To comprehend what the Court held it is necessary to
first look back at the decision appealed from. Here, in
Ford Motor Company v. N.L.R.B., 571 F.2d 993 (7th Cir.
1978), the court of appeals pointedly noted a "local
agreement" had been in effect from June 20, 1974,
through September 1976. It expressly provided for both
cafeteria and vending services continuing a written rec-
ognition between the parties at the local level as to qual-
ity of catering operations that had originated in 1967.
This is essentially the same information as may be
gleaned from the underlying Board decision in Ford
Motor Company, 230 NLRB 716 (1977). What must be
emphasized is that local agreements of the type found in
Ford are but spinoffs of national agreements reached pe-
riodically in the auto industry between corporate bar-
gainers and the International Union, UAW. See Ford
Motor Company (Romeo Tractor & Equipment Plant), 222
NLRB 855 (1976). Reconstructing the period in which
the Supreme Court decided Ford it is seen that the na-
tional agreement then in effect ran from November 19,
1973, to September 14, 1976. See Ford Motor Company
(Rouge Complex), 233 NLRB 698 at 703; Local 600
(UA W) (Dearborn Stamping Plant of Ford Motor Co.), 225
NLRB 1299 at 1303 (1976); Ford Motor Company, 221
NLRB 663 at 665 (1975). Thus the local agreement for
the Chicago Stamping Plant openly dealt with the very
subject which could not successfully be avoided when a
mid-term bargaining request ensued. That is the critical
distinction in Ford, and it is one which compels a hold-
ing that article XVII here is of such resolute clarity that
it must be given "meaning and effect." These are the
words of Radioear Corporation, 214 NLRB 362 (1974), in
which the Board weighed the several factors to be con-
sidered when a "zipper" clause is claimed to be a waiver
of any continuing right to bargain. Here the wording of
article XVII is precise. There was never a proposal made
as to prices when the contract was under negotiation, the
document was fully integrated as an extensive collective-
bargaining agreement, and there are no side practices
that would cast doubt on whether a waiver occurred. 3
Were this not enough there are two intriguing foot-
notes in Ford that give greater weight to reasoning
toward dismissal. Footnote 10 of the main opinion em-
phasizes that the Court holds as it does only because the
in-plant food services already exist. This tends to high-
light the Court's incessant return to the practical fact
that to work is to eat and this reality should have an ap-
propriate place in the labor-management scheme. Sec-
ondly footnote 15 analogizes in-plant food services to
health insurance, and makes the significant point that
such a benefit is not conveniently changed "during the
term of the contract."
The teaching of Ford does not therefore supersede or-
dinary waiver principles which are here so compellingly
to be applied. Article XVII could hardly state with
greater impact than that each party was knowingly satis-
fied with the scope of subjects raised for the contract
term about to commence and the parties could confident-
ly launch into that period with the stability that collec-
tive-bargaining agreements are designed to ensure. The
short answer to Kelly's description of having been mes-
merized by what the Fourth and First Circuit Court of
Appeals were doing in McCall Corporation v. N.L.R.B..,
432 F.2d 267 (4th Cir. 1970), and Package Machinery Co.
v. .V.L.R.B., 457 F.2d 936 (Ist Cir. 1972), is that subse-
quent to this the Board, in the underlying Ford case, ex-
pressly reaffirmed its view on July 11, 1977, long before
negotiations even started for the current agreement and
in language that could hardly be misunderstood. It cor-
rected an administrative law judge's "error" in himself
being swayed by decisions among the circuits, and wrote
.. . we adhere to our position that cafeteria and vend-
ing machine prices are a mandatory subject of bargain-
ing."
[Recommended Order for dismissal omitted from pub-
lication.]
3 I do not, however, adopt Respondent's argument that treatment of
overtime meals or an "in lieu" stipend, as such matters are expressed in
art VII, bears any relationship to the essential issue. Such a provision
deals with the extraordinary, while the salient subject of cafeteria and
sending machine food and pricing is an ongoing, daily matter of employ-
ee concern
1351