Westinghouse Electric Corp.

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany wants it; the Company pays all costs of keeping the boat in repair and makes all decisions concerning when and where major repairs are to be made; the Company carries indemnity insurance which protects the captain as well as his crew; and the captain is prohibited from using the boats for any purpose other than clamming. In view of the foregoing and the record as a whole, we find that the captains are not independent contractors but are supervisors and the crew members are employees of the Employer.- We therefore find that a question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of the Act: All crew members employed aboard clamming vessels owned by the Employer, excluding captains. [Text of Direction of Election omitted from publication.] 6 East Coast Trawling & Dock Company, Inc., 153 NLRB 1354.; William P. Riggin & Son, Inc., 153 NLRB 1358. To the extent that the Snow case, footnote 2, supra, is in- consistent with this finding, it is hereby overruled. Westinghouse Electric Corporation and Salaried Employees As- sociation of the Baltimore Division, Federation of Westing- house Independent Salaried Unions. Case No. 5-CA-3033. January 21, 1966 DECISION AND ORDER On August 11, 1965, Trial Examiner Harry H. Luskin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a support- ing brief. The National Labor Relations 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 con- sidered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, with the following modifications. 156 NLRB No. 96. WESTINGHOUSE ELECTRIC CORPORATION 1081 The Trial Examiner found that Respondent had violated Section 8(a) (5) and (1) of the Act by failing to notify the Union of proposed changes in food prices charged in the cafeterias and by refusing upon request to bargain concerning such changes. We agree with the Trial Examiner's finding of an 8 (a) (5) violation, but we base this only upon Respondent's rejection of the Union's request for bargaining about the price changes. Although we agree with the Trial Examiner that in the circumstances of this case the subject of cafeteria food prices was a mandatory subject of bargaining, it does not follow that Respondent was required to bargain about every proposed change in food prices before putting such change in effect. Because of the nature of the res- taurant business-the constant and frequently sharp fluctuation in the cost of food ingredients, the large number of individual items sold, and changes in menus-it is impracticable to require consultation with a union before each change in the price of any of the products sold. It is sufficient compliance with the statutory mandate, we believe, if man- agement honors a specific union request for bargaining about changes made or to be made. Here, however, Respondent rejected the Union's request for bargaining about food price changes. By so doing, we find Respondent unlawfully refused to bargain with the Union. The dissent does not deal realistically with the problem posed by this case. The present dispute is not limited to the price of coffee, as the dissent implies, but extends to all prices charged in the cafeterias. Respondent has cafeterias on its premises because there are inadequate dining facilities within a reasonable distance of its plants. If it did not have these facilities, it would not be able to attract the necessary number of employees to man its plants. In practical terms, on-site eating facilities are held out to the employees and prospective employ- ees as an inducement to work for Respondent. They are thus condi- tions of employment. The problem is as simple as that. It is no answer to say that employees can bring their lunches if they do not like the prices charged in the cafeterias. We suppose that employees can also eat cake, if the cafeterias do not serve bread, or the employees can go elsewhere if they do not like Respondent's conditions of employment. The fact is that a considerable number of employees do not wish to bring their lunches from home, and if they had to do so would presum- ably look for employment elsewhere. Such employees are in substance and effect captive customers of the on-site cafeterias, even though Respondent chooses to have an outside company operate the cafeterias. Although the dissent speaks of leaving price increases for food to the "mercies of the voluntary action of the market place," it overlooks that because of physical location and the requirements of the job, there is no market place and no competition. We would note that the present deci- 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion. does not require either Respondent or the cafeteria operator to rescind price increases, but only that they meet with the Union, when requested, to discuss increases in a good-faith effort to reach agreement. Experience tells us that disputes over plant conditions that may appear of minor significance to us, such as the length of relief periods, the schedule of prices charged for lunches, etc., can lead to the disrup- tion of operations. In our view it is therefore within the objective and meaning of the Act to require parties to submit such controversies to the healing processes of collective bargaining. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Amended paragraphs 1(a) and 2 (a) to read: ["1 (a) Refusing, upon request, to bargain collectively with Salaried Employees Association of the Baltimore Division, Federation of West- inghouse Independent Salaried Unions, as the exclusive bargaining representative of all the employees included in the units specifically set forth in paragraph 3 of the Conclusions of Law herein with respect to the reasonableness of proposed changes in food prices at the Respond- ent's cafeterias." ["2(a) Upon request, bargain collectively with Salaried Employees Association of the Baltimore Division, Federation of Westinghouse Independent Salaried Unions, as the exclusive representative of all its employees in the aforesaid appropriate units with respect to the rea- sonableness of any changes, now in effect or hereafter proposed, in food prices charged employees at its cafeterias." [2. Delete paragraph 1(b) and redesignate paragraph 1(c) as 1(b). [3. Amend the first indented paragraph of the notice to read: [WE WILL NOT refuse, upon request, to bargain collectively with Salaried Employees Association of the Baltimore Division, Fed- eration of Westinghouse Independent Salaried Unions, as the exclusive representative of all the employees in the bargaining units described herein with respect to the reasonableness of any changes in food prices charged at our cafeterias. [4. Delete the second indented paragraph of the notice.] MEMBERS JENIKINS and ZAGORIA, dissenting : Collective bargaining is healthy, but if bargaining over a penny-a- cup increase in coffee becomes mandatory to the menu on the bargain- ing table, the result is liable to be acute indigestion. The statute requires that an employer bargain over wages, hours, and conditions of employment. Here, an employer has voluntarily provided cafeterias WESTINGHOUSE ELECTRIC CORPORATION 1083 for his employees. An independent contractor furnishes the food and sets the prices. Employees may also bring their lunches and eat them in the cafeterias. There is no compulsion to buy or to bring lunches; indeed, only 40 to 45 percent of the work force makes use of the cafe- terias. In this case, a union, one of three in the plants, proposes that the prices, including the most recent increase of a penny-a-cup on carry- out coffee and 5 cents on hot items, be the subject of mandatory bargain- ing. Since there is joint, although limited use, of the cafeterias, the bargaining over the prices on each item on the menu by each of the three unions has the potential for extensive preemption of manage- ment and employee time. And if this position is sustained, will the next step require bargaining over color of restroom walls, adequacy of pool table equipment, and the like? The matters of wages, hours, working conditions, job security, and the like are deserving of the status of mandatory collective bargaining; penny-a-cup increases in carryout coffee are better left to the mercies of the voluntary action of the market place. When the cash register stops ringing, the price of coffee will begin descending. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was heard before Trial Examiner Harry H. Kuskin at Baltimore, Maryland, on June 10, 1965, pursuant to a charge filed on January 19, 1965, and a complaint issued on April 8, 1965, as thereafter amended at the hearing. It presents the question of whether Westinghouse Electric Corporation, herein called the Respondent, has since on or about January 9, 1965, refused to bargain with Salaried Employees Association of the Baltimore Division, Federation of Westinghouse Inde- pendent Salaried Unions, herein called the Union, as the exclusive bargaining repre- sentative of the Respondent's employees in a number of appropriate units with respect to changes in the prices of food served by Baltimore Catering Company, herein called the Caterer, on the Respondent's premises to the Respondent's employees. In substance, the Respondent admits the allegations of the complaint pertaining to commerce and status of the Union as a labor organization but denies that it has violated the Act by its refusal to bargain, allegedly because it has no legal obligation to bargain with the Union as to this matter. Upon the entire record,1 which consists mostly of undisputed testimony, and after due consideration of the brief filed by the Respondent and the letter, in lieu of brief, filed by General Counsel, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED The pleadings establish, and I find, that: (1) the Respondent, a Pennsylvania corporation with various installations throughout the United States, operates at several locations in Baltimore, Maryland, where it is engaged in the research, manu- facture, and distribution of electrical products, that it annually ships in excess of $50,000 worth of products outside the State of Maryland, and that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act; and (2) the Union is a labor organization within the meaning of Section 2(5) of the Act. 'As corrected by my order correcting transcript dated July 15, 1965. Since these corrections Include the ones appearing in the Respondent's July 8, 1965, motion to correct the transcript, and since these corrections, like the other corrections, are unopposed, the motion is hereby granted. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE UNFAIR LABOR PRACTICES The Existing Contractual Relationships The Respondent and Federation of Westinghouse Independent Salaried Unions are currently parties to a national agreement by which the Respondent "recognizes the Federation on behalf of and in conjunction with its Affiliates for those units where the Federation or an Affiliate, respectively, through a National Labor Rela- tions Board certification has been lawfully designated as the exclusive bargaining agent." The Union is an affiliate of the Federation. The contract details in its appendix the various units in the Baltimore, Maryland, area in which the Union is the bargaining representative. These include the units involved herein at the Friend- ship site, the Lansdowne site, and the Parker Road site. These three sites each house a cafeteria. The cafeterias are currently being operated by Baltimore Catering Company pursuant to a renewable 1-year contract with the Respondent. In broad outline, the latter agreement provides that the Respondent, for the com- pensation of $1 per year, is to furnish the space and the utensils and basic equipment for the cafeterias and to maintain the capital equipment. The caterer, in turn, agrees to furnish and pay for all the foodstuff and operating supplies, to maintain the inven- tory and replace lost, damaged, or missing items, to maintain the cafeteria premises, to furnish all personnel properly to operate the cafeterias,2 to comply with appli- cable laws and ordinances, to provide various types of insurance coverage, and to refrain from using the name "Westinghouse" or "Westinghouse Cafeteria" in the conduct of the business of these cafeterias. In addition, the contract contains the following provisions which are of special significance here: (1) "the Caterer shall provide all meals and foodstuffs of good quality, subject at all times to the approval of the Manager of [the Respondent] at the premises ...:.; (2) "the quality and prices of the meals served . . . shall at all times be reasonable"; (3) the Caterer "shall maintain accounting records ... which shall be subject to periodical audit at the discretion of [the Respondent] and daily deposit slips in duplicate shall be furnished each day to [the Respondent]"; (4) a monthly record of all sales shall be submitted to the Respondent; (5) the caterer acts and shall act at all times solely as an inde- pendent contractor and nothing in the agreement shall be construed in such a manner as to create the relationship of partners, or of joint adventurers or of agency between the parties; and (6) the contract is terminable by either party upon 60 days' written notice to the other party. It appears from the record herein that the contract is being administered as written. The caterer operates commercial cafeterias for other employers, as well, and there is no contention here that there is a relationship of partnership, joint adventurer, or agency between it and the Respondent. The employees at the three cafeterias are currently represented by the International Union of Electrical and Radio and Machine Workers, herein called the IUE, pursuant to a Board certification dated October 19, 1964, in Case No 5-RC-4457.3 The Extent of Use by the Employees of the In-Plant Cafeterias and Off-The -Premises Eating Places These cafeteria facilities are provided for all the employees at the plants compris- ing the Respondent's defense center. The plants encompass the aerospace division (formerly the air arm division), the surface division, and the underseas division. The latter includes separate locations at Lansdowne and Parker Road. The services department is also part of this complex of plants. The aerospace division, surface division, and services building are located at Friendship Airport and, though in sepa- rate buildings, are all interconnected. The underseas division, Lansdowne operation, is 13 miles away from the Friendship site, and the Parker Road operation is about 5 miles from the Lansdowne operation and 13 miles from the Friendship site. About the time of the hearing, there were 3,706 employees at Aerospace, of whom 1,066 were represented by the Union, 1,168 were represented by Local 1805 of the Inter- national Brotherhood of Electrical Workers, AFL-CIO, herein called IBEW Local 2 Section 11 of the agreement provides, in part, that all personnel employed by the caterer shall be subject to the approval of the Respondent and to the approval of the officers of the United States of America in charge of internal security matters. The Respondent argues in Its brief that this concerns only approval from a security and health standpoint. However, since I do not rest any findings herein on this section of the agreement, I need not, and do not, interpret it 8 The caterer and the IUE entered into an agreement shortly after the certification. The Respondent "did not in any way handle negotiations for this agreement." WESTINGHOUSE ELECTRIC CORPORATION 1085 1805, and 1,095 exempt employees and 377 management employees were unrepre- sented. The surface division had 1,705 employees, of whom 496 were represented by the Union, 333 were represented by IUE Local 130, and 655 exempt employees and 221 management employees were unrepresented. The underseas division, including both locations, had 980 employees, of whom 496 were represented by the Union, 333 employees were represented by IUE Local 130, and 333 exempt employees and 116 management employees were unrepresented. The services building had 1,174 employ- ees, of whom 644 were represented by the Union, some of the 263 hourly employees were represented by IBEW Local 1805, some were unrepresented along with 138 exempt employees and 129 management employees. The cafeteria at Friendship has been in operation since 1952, the one at Lansdowne for at least 20 years, and the one at Parker Road for about 3 years.4 As already noted, the facilities of the cafeterias are available to all persons employed at the three locations. Approximately 200 military and outside representatives who are perma- nently stationed at the Friendship site also use the cafeteria located there. The cafe- teria is also available to visitors who happen to be in the building under employee escort. There is no requirement that employees purchase meals at these cafeterias and, according to Cromwell, the Respondent's industrial relations director, a recent survey reveals that between 40 and 45 percent of the employees utilized the cafe- terias. Employee James L. Hare, the president of the Union, testified that employees may purchase coffee and doughnuts from chuckwagons on the Respondent's parking lots on their way to work and that the automatic vending machines inside the plant dispense soft drinks but not coffee; he did not know whether sandwiches and other foods could be purchased from the chuckwagons. Some employees at all these loca- tions bring their lunches and eat them at their desks or work stations,5 on patios of the plants, or in an area reserved for them in the cafeterias. The record shows the following with respect to the time allotted to employees for their meals and the location of other cafeterias and eating facilities: The uncontro- verted testimony of Hare is to the effect that the employees on the 7 a.m. shift and other shifts, up to and including the 8 a.m. shift, have 30 minutes for lunch; employ- ees on shifts starting at 8:15 and 8:30 a m. have 45 minutes for that purpose; and employees on the afternoon shifts beginning at 3 and 4 o'clock have 30 minutes for their mealtime. As to the location of eating places in the vicinity, Hare testified that the nearest one to the Friendship site is about a mile away and that his personal count of seats showed that it could accommodate between 80 and 90 individuals; that the nearest eating facility to the Lansdowne site is about three-quarters of a mile away and could, according to his count, accommodate 64 employees; and that the 2 closest eating facilities in the Parker Road site would be about 1 mile away, that one such facility was open during the noon hour and could accommodate 32 people and that a second facility would be available during the evening and could accommodate an additional 50 people. Although Hare testified, on cross-examination, that he could not discount the possibility that there were other eating establishments in the vicinity of these three sites, he qualified this by saying that he was not aware of any place where he would be willing to eat, and the Respondent introduced no evidence on the availability of other eating establishments. I am therefore satisfied, and find, that the number and size of the outside eating places available to the employees working at these sites are substantially as Hare testified. With respect to access to these outside eating places from the plant herein the fol- lowing appears: According to Hare, the employees get to work by car, some of them going by car pools,6 and there is no commercial transportation service. Cromwell's testimony controverted this. As to the Friendship Airport site, he stated that there was a bus to the airport about once an hour and that the bus schedule is heavier at the time of the day when the employees are coming to and leaving work. It is there- fore clear from Cromwell's testimony as to the bus schedule that the commercial transportation at the Friendship site would not afford employees ready access to these outside eating places.? In the absence of any testimony by Cromwell as to the bus schedules at the Lansdowne and Parker Road sites, there is no warrant for concluding that the situation is any different at these two sites. * The Respondent states in its brief that "each of these cafeterias has been in existence from the beginning of the separate plants." 5 In some production areas in the production department , employees cannot eat at their workplace. They are asked to eat in the cafeteria. 6 Hare testified that "most every employee drives himself to work." 7 In crediting Cromwell, as I do here, I do not regard his testimony as casting any doubt on Hare's other testimony, which I also credit on the basis of my observation of Hare and the fact that such other testimony is uncontradicted 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is patent from all the foregoing, and I find, that the employees are compelled by existing circumstances to do their eating on the premises. This is so because off-the- premises eating is fraught with so many obstacles as to make it impossible for employ- ees to secure a meal and return within the time allotted to them. Thus, some employ- ees are given a half hour and others three-quarters of an hour for their meal, the nearest off-the-premises eating facilities are about a mile away, there is, considering the very large number of employees at these sites, insufficient seating capacity at the available places, there is a lack of ready access to such places by commercial trans- portation, and, were private automobiles to be used, there would be the inescapable time factor incident to getting to and from the company parking lots, traversing the public highway, finding parking space, and then parking at or near the eating place. It is, of course, arguable that employees are not compelled to purchase food in the cafeterias because they can bring their lunches each day from home. However, I find such argument unpersuasive. In the first place, it negates the very purpose of the cafeteria. Secondly, the realities are that, apart from any preference employees might have against bringing their lunches, some employees would find it unfeasible or burdensome to do so.s The October 1964 Increase in Cafeteria Prices So far as appears, the first complaint by the Union about cafeteria prices occurred in October 1964. Hare testified as follows in reference to this complaint: When the increase was announced on or about October 5, he approached James Wallace, the Respondent's assistant manager of industrial relations, and asked for a meeting to discuss price changes but the request was denied. A telegram was thereafter sent to Buford M. Brown, vice president of the Respondent, asking for a meeting "to dis- cuss conditions that existed in the cafeteria, generally." In response thereto, a meet- ing took place in the office of Roy D. Cromwell, the Respondent's industrial rela- tions representative for the services systems and service buildings. Present, in addition to Hare and his committee and Cromwell, were M. E. Whelpley, the owner of the Baltimore Catering Company, a Mr. Anderson on behalf of the caterer, and a Mr. White, together with a committee, on behalf of the TUE. At this meeting, food prices were discussed. The "discussion was with Whelpley and Anderson"; Crom- well, who was in and out of the room from time to time, was also "involved in the discussion." Cromwell said that he was in no position to bargain about prices. The meeting was continued, by agreement, to October 15. At that time, there was no further exploration of prices. Cromwell was present throughout this meeting. The Union was told by Cromwell, on the one hand, that the Respondent "would abso- lutely refuse to negotiate with [it] on cafeteria prices," that he had no authority to bargain with the Union on prices and that since prices were established by the caterer he had no control over prices. The Union was told by Anderson, on the other hand, that "any consideration given to the previous discussion on the 13th was down the drain" and that "they were going to stick to the announced price increase." Cromwell's testimony differs in these following respects from that of Hare: At the October 13 meeting, he told those present that the caterer was an independent con- tractor and "if they wished to discuss specific prices of food they would have to dis- cuss it with the Caterer and see if they could make such arrangement and that [he] was there as an observer for the [Respondent]," that prices were discussed in his presence, but he took no part in the discussion. At the October 15 meeting there were discussions concerning food prices but he took no part in them, making it clear that he was in no position to negotiate concerning food prices. I find it unnecessary to reconcile these differences and to determine whose testimony more accurately reflects the content of these meetings. To the extent that their testi- mony is similar it indicates, and I find, that the Respondent sought to resolve the complaint by the Union as to Cafeteria prices by promoting discussions, in its pres- ence, between the unions concerned and the caterer and that the Respondent took the position then, as it does now, that since the caterer rather than the Respondent controlled prices, the Respondent had no obligation to bargain respecting prices, and to bargain would be futile. BI find it unnecessary to concern myself with the extent to which the furnishing of meals in the cafeterias constitutes , for those who are compelled to eat in the cafeteria, an "emolument of value" and hence a part of wages. WESTINGHOUSE ELECTRIC CORPORATION 1087 The Respondent's October 18, 1964, Letter to its Employees on its Policy Relating to Cafeterias Shortly after the two meetings discussed above, the Respondent mailed a letter dated October 16, 1964 , and bearing the signature of Buford Brown to all the Respond- ent's employees, detailing its policy respecting cafeterias . As the letter tends to amplify in some respects the position theretofore taken by Cromwell and appears to reflect the Respondent's current policy, its contents are set forth herein, in full: There has been a great deal of misinformation given out about our cafeteria. I would like to tell you what our policy is. We are anxious to eliminate eating in the shop and office areas where cleanli- ness is such an important factor in satisfying our customers . Therefore, we pro- vide cafeteria facilities for the convenience of our employees-whether you bring your lunch or purchase it at the counter . This choice is your own and we have no interest one way or the other whether you buy your lunch or bring it. We provide the facilities but in order to take care of serving beverages and food, we entered into a contract with the Baltimore Catering Company to perform this service. We provide all the facilities and they are responsible for the remainder. Their operations are monitored by us to be sure that employees get good service, quality food and at prices as reasonable as possible. We periodically review our cafeteria prices, and a recent survey shows that they are no higher than other non -subsidized industrial cafeteria prices in the Baltimore area. In order to monitor the cafeteria prices, we audit the costs for food and labor incurred by the Baltimore Catering Company so that we can have a basis for determining the reasonableness of their prices . These prices, of course, are set with due consideration for food and labor costs and are commen- surate for the services rendered. As an example of this, prices in our visitors din- ing room are set at a higher rate in order to take care of additional service pro- vided for our customers and management. We have always insisted on serving food of the highest quality, at prices as rea- sonable as possible. We believe that our cafeteria will stand a test of comparison with any industrial cafeteria in the area. The Manner of Effectuating Price Changes Cromwell testified that the Respondent is not interested in determining the actual prices charged for the individual items but that "we do have in our contract that we feel they should be reasonable prices and we are primarily concerned that the request for increases in prices are justified on the basis of piece cost ." In the past, increases in food prices have occurred at 11/2-year intervals . According to Cromwell, the practice has been for the caterer to tell the Respondent in advance of an intended price change . He viewed this step by the caterer as good business practice because the contract is terminable on 60 days ' notice, and not to tell the Respondent would be to risk cancellation . He testified further that there have been discussions about prices and that the Respondent feels that it should tell the caterer fully when "we don't feel there is a justification for [the increase ]." There have, however, been no instances in which the Respondent has caused the caterer to change or modify its intended price increase. The changes in food prices are effected by the posting on the Respondent's bulletin boards of a notice from the caterer to all employees that prices are being changed as of a subsequent date. The posting is handled by office personnel of the Respondent in the same manner as notices of union meetings are handled, it being the Respondent 's practice to control the posting through its industrial relations office. The Respondent does not, at anytime, notify the Union on its own of the projected price changes. The January 1965 Increase Food prices in the cafeterias were increased again in January 1965 . There was a 5-cent increase in the price of each of the hot food entrees and a 1-cent increase in the price of carry-out coffee. A notice under the caterer 's letterhead announcing prospectively these price changes, as well as changes in menu, was posted on the Respondent's bulletin boards in the usual manner. Shortly after reading the notice, Hare, in the company of Union Vice President Suroko, discussed the matter with Wallace and asked him to negotiate with them "concerning this increase in food prices." Hare testified that he approached Wallace because he is the one normally consulted on any problem arising in the administration of the Union's contract. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wallace replied that "he could not negotiate with [them] anything that he had no control over, that he had no control whatsoever over this increase in the cafeteria prices." Whereupon, the Union filed the instant charge. Conclusions as to the Alleged Refusal to Bargain The complaint alleges, the answer admits, and I find that tht following units repre- sented by the Union at the Friendship, Lansdowne, and Parker Road sites are appro- priate for collective-bargaining purposes: All salaried, technical , and clerical employees of the Resopndent at the ordinance department, Lansdowne, Maryland, plant, excluding all professional employees, all shop clerical employees , all inspectors and testers , guards, and supervisors as defined in the Act. All clerical and technical employees of the Respondent in its electronics division at Friendship International Airport, Baltimore , Maryland, all clerical and technical employees employed by the Respondent at its Parker Road, Baltimore, Maryland, plant, all clerical and technical employees including utility men located at Morrell Park, 2940 Washington Boulevard , working under the direction of the engineering department of the electronics division located at Parker Road, excluding all employees of the engineering and service department , all hourly paid employees, all inspectors and testers, all confidential employees, guards, professional employees, and supervisors as defined in the Act. All salaried , technical, and clerical employees of the Respondent at the air arm division, Friendship International Airport, Fort Meade Road, Maryland; excluding inspectors ; time and motion analysts; buyers ; general subcontract specialists ; secre- taries to : the division manager, the assistant division manager and the assistant to the division manager, the manager of manufacturing , the contract administrator, the supervisor of industrial relations , departmental managers, subdivision managers other than section managers, and to the assistant application engineering manager; scholar- ship employees while in training ; industrial relations assistants and interviewers; ad- ministrative assistants to: the division manager, the manager of manufacturing, departmental managers , and subdivision managers other than section managers; all professional employees, including, but not limited to, engineers, application engineers, manufacturing engineers , test engineers, flight engineers, engineering writers, and nurses; pilots and copilots , guards, and supervisors , as defined in the Act. All salaried technical and clerical employees of the Respondent in the management services building, Friendship Airport plants, Baltimore, Maryland, excluding all pro- fessional employees , all hourly paid employees , all employees of the engineering and service department, all executive assistants, all inspectors and testers , all shop clerical employees , all confidential employees , industrial relations assistants , interviewers, buyers, guards, and supervisors as defined in the Act. All clerical and technical employees in the systems department of the Respondent, Friendship Airport plant, Baltimore, Maryland, excluding all professional employees, all hourly paid employees of the engineering and service department, all confidential employees, all industrial relations assistants , interviewers , buyers, guards, and super- visors as defined in the Act. All clerical and technical employees of the underseas division of the Respondent at its Parker Road, Baltimore, plant, excluding all employees of the engineering and service department, all hourly paid employees, all confidential employees, all industrial relations assistants, interviewers, buyers, guards , professional employees, and super- visors as defined in the Act. I find further that the Union is currently the contractual bargaining representative of all the employees in these units and has had such exclusive bargaining status at all times material herein. The testimony in this proceeding is undisputed that the Union sought to negotiate with the Respondent concerning the increase in food prices in the plant cafeterias on two occasions within the last year and that on each occasion the Respondent refused to negotiate. The more recent refusal occurred on or about January 9, 1965. At that time, James Wallace, the Respondent's assistant industrial relations representative, rejected the bargaining request made by Hare and Suroko on behalf of the Union, by saying that he "could not negotiate with [them] anything that he had no control over, that he had no control whatsoever over this increase in the cafeteria prices." The implication was thus clear, particularly when measured against the events relating to the prior request in October 1964, that then, as now, the Respondent was taking the position that it has no legal obligation to bargain because the cafeterias are operated by the caterer, an independent contractor, which sets the prices to be charged and any bargaining by the Respondent with the Union over matters beyond its control would therefore be futile. Additionally, the Respondent argues in its brief, in justification WESTINGHOUSE ELECTRIC CORPORATION 1089 of its refusal to bargain, that the furnishing of cafeteria service is neither a condition of employment nor wages but rather a convenience to the employees, who may use it, or not, as they desire, that, assuming a bargaining obligation, it is impossible and wholly impractical for the Respondent to bargain with the Union regarding a matter which directly relates to, and affects, employees represented by two other unions and even more employees who are unrepresented; and that the Respondent fulfilled its bargaining obligation in October 1964 in the only real and practical way possible by arranging for meetings between the Union and the caterer specifically to discuss prices.9 The last-mentioned contention is clearly lacking in merit. It is obvious that, if there is a bargaining obligation here, it cannot be satisfied by discussions between the caterer and the Union. Such discussions would be held in a vacuum as there is no existing collective-bargaining relationship between the caterer and the Union nor is there any legal basis for invoking one. Nor is there merit in the Respondent's argu- ment as to the impossibility and impracticality of bargaining with the Union, even assuming that there was an obligation to do so. The fact that the subject bargained about relates to, and affects, other employees who are either represented by other unions or are unrepresented does not require calling a halt to the collective-bargaining process. It is fundamental in the law of labor relations that the definition of a manda- tory subject of collective bargaining does not turn upon whether the subject under negotiation has an impact beyond the confines of the bargaining unit.1'9 While the ultimate bargain may, in some situations , be affected thereby, such considerations afford no legally tenable basis for a threshold refusal to bargain. I am also unable to agree with the Respondent that the furnishing of cafeteria serv- ice is not a condition of employment but rather a convenience to the employees, who may use the cafeteria or not as they desire. In the above cited Weyerhaeuser case, the Board, in holding that there was a statutory obligation to bargain as to the price for meals served at the employer's sawmill and logging camps, rejected as too narrow the argument that the term "condition of employment" as used in the Act applies only to those conditions under which employees are compelled to work and does not embrace any condition which the employer establishes as a matter of convenience for its employees. The Board pointed out that the term was meant to encompass many noncompulsory aspects of the employer-employee relationship,11 although what was involved in the case at hand was conditions under which employees are required to work. It is true that the instant operation is distinguishable in many respects from the logging camps and sawmill operation in the cited case where there were employees without feasible means of transportation who were necessarily obliged to live and eat at company facilities. However, these differences lack controlling force because here, as there, the circumstances compel employees to do their eating on the premises. It follows, therefore, that, as in the Weyerhaeuser case, the eating facilities not only represent a necessary condition of employment because of the way they affect these employees but one that exerts the same force and effect as a condition that is expressly made a necessary part of employment.12 It is consequently clear, and I find, that the eating facilities, including the prices of the meals served, constitute a condition of employment within the meaning of Section 9(a) of the Act. There is, however, the further contention of the Respondent, in substance, that the fact that the cafeterias are operated by the caterer, an independent contractor, which sets the prices, places this matter in a different posture from the Weyerhaeuser case. 0 No such arrangements were made by the Respondent in January. Cromwell testified the Union did not request that such arrangement be made. 10 Weyerhaeuser Timber Company, 87 NLRB 672, 688. 11 See Elgin Standard Brick Manufacturing Company, 90 NLRB 1467, 1490; Abbott Worsted Mills, Inc., 36 NLRB 545, enfd. 127 F. 2d 438 (C.A. 1). 12 See Central Illinois Public Service Company, 139 NLRB 1407, 1415 The fact that the Union has not requested bargaining with respect to changes in cafeteria prices before October 1964, or has not mentioned the issue of cafeteria prices during its approximately 2 years of negotiation with the Respondent concerning a local supplement (for the aerospace division only), to the existing nationwide agreement, does not constitute a waiver of the right to seek bargaining here. In the first place, I find no clear and unequivocal waiver here. See The Timken Roller Bearing Co v. N.L.R B., 325 F. 2d 746, 751 (CA. 6), cert denied 376 U.S 971 ; Perkins Machine Company, 141 NLRB 98, enfd. 326 F. 2d 488 (CA 1) ; C & C Plywood Corporation, 148 NLRB 414; Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 956, 957. Secondly, there was no necessity for the Union to seek from the Respondent a right which it already had by statute, viz, to be bargained with concerning a condition of employment. 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent reasons that because the matter of prices is beyond its direct control 13 any bargaining it might do would be an "exercise in futility" and it is of no conse- quence that the Respondent might be able indirectly to have some control by ceasing to do business with the independent contractor who does have such direct control While the instant case is thus different from the Weyerhaeuser case in that there, unlike here, Weyerhaeuser itself operated the eating facilities, I am of the view, and I find, that this does not affect my earlier finding that the subject matter herein is a con- dition of employment. Compare United Aircraft, Pratt & Whitney Aiiciaft Division, 139 NLRB 39, enfd. 324 F. 2d 128 (C.A. 1). There, as here, the cafeteria facilities were operated by an independent contractor. Among the provisions of the existing agreement was one requiring the independent contractor to furnish meals for the employer's officers and employees "at the lowest cost consistent with the best quality of food, prepared and served under hygienic conditions"-a provision analagous to terms in the instant contract. The principal issue was the legality of the no-distribution rule promulgated by the employer because of the union's distribution of leaflets which criticized, inter alia, the food served in the cafeteria, the prices charged, and the use of unclean trays. The Board there affirmed the Trial Examiner's finding of illegality and, significantly, adopted without comment the Trial Examiner's finding in this con- nection that "There is no question that the quality of food served in the cafeterias and the prices charged were matters of legitimate concern to employees and related to their terms and conditions of employment." As already found, the contract between the Respondent and the caterer provides, in significant part, that "the Carterer shall provide all meals and foodstuffs of good quality, subject at all times to the approval of the Manager of [the Respondent] at the premises ... "; "the quality and prices of the meals served ... shall at all times be reasonable"; the Cateier "shall maintain accounting records ... which shall be sub- ject to periodical audit at the discretion of [of Respondent] and daily deposit slips in duplicate shall be furnished each day to [the Respondent]"; a monthly record of all sales shall be submitted to the Respondent; and the contract is terminable by either party upon 60 days' written notice to the other party. The Respondent's October 16, 1964, letter to its employees with respect to its policy relating to cafeterias 14 is illumi- nating on the Respondent's role in the administration of this 'contract. Thus, the Respondent there indicates that it has provided the cafeteria facilities because it "is anxious to eliminate eating in the shop and office facilities where cleanliness is such an important factor in satisfying our customers"; that, in order to take care of serv- ing beverages and food, the contract was entered into with the caterer; that the caterer's "operations are monitored" by it to be sure that employees get good service and quality food at prices as ieasonable as possible; that it periodically reviews cafe- teria prices and, in order to "monitor the prices," it audits the cost for food and labor incurred by the caterer which affords a basis for determining the reasonableness of prices; and that it has always insisted on serving food of the highest quality at prices as reasonable as possible. Of further illumination is the actual practice by the parties when a price increase is under consideration. As already indicated, Cromwell testi- fied that the practice has been for the caterer to tell the Respondent in advance of an intended price change; that there have been discussions in these instances about prices, and that the Respondent feels that it should tell the caterer fully when "we don't feel there is a justification for [the increase]"; and that changes in prices are announced to all employees by the posting on plant bulletin boards of a notice to that effect from the caterer, the posting being handled by the Respondent's office personnel. It is apparent, and I find, that under its contract with the caterer, and as a matter of policy, and in actual practice, the Respondent retains a substantial measure of control over the prices to be charged in the cafeterias. While the caterer initiates the action with respect to a change in prices, the Respondent, by retaining the right to cancel the contract on 60 days' notice to the caterer, holds a veto power in the matter of prices of food in the cafeterias, should there be warrant for its exercise. Cromwell indicated as much by describing the caterer's practice of notifying the Respondent in advance of an intended increase as good business practice because the contract is terminable on 60 days' notice and not to tell the Respondent would be to risk cancellation. In view of this veto power, I cannot accept the Respondent's contention that bargaining on this subject matter with the Union would be an exercise in futility At the very least, the Respondent is in a clear position to influence and exert pressure upon the caterer with respect to the establishment of food prices. This is not to say that the Respond- 13 While the Respondent speaks in its brief variously about having no control and having no direct control , the burden of its argument is that it lacks direct control over the subject matter, essential to a bargaining obligation 14 See supra WESTINGHOUSE ELECTRIC CORPORATION 1091 ent's legal obligation necessarily requires that it exert such pressure or utilize its veto power. It is to say that the duty to bargain requires the Respondent to meet with the employees' representative in order to discuss and exchange views regarding their com- plaints or grievances concerning the subject of the prices charged in its cafeterias, a condition of employment and therefore a mandatory subject of collective bargaining. That such discussion between the Respondent and the Union may prove abortive is not controlling ; it is sufficient that such discussion may prove persuasive and be pro- ductive. Compare East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, et al. (Fibreboard Paper Products Coip ) v. N.L.R.B., 379 U.S. 203, 213-214, in which the Supreme Court, in discussing the mandatory subject of "contracting out" or subcontracting , said "The short answer is that, although it is not possible to say whether a satisfactory solution could be reached , national labor policy is founded upon the congressional determination that the chances are good enough to warrant subjecting such issues to the process of collective negotiations." For all these reasons, I find that the Respondent was under an obligation to bargain with the Union concerning price changes to the extent of its executive ability to con- trol and influence food prices . By failing to notify the Union of the proposed price changes in the cafeterias , by refusing, upon request, to bargain concerning such changes, and by unilaterally determining the reasonableness of the proposed price changes, the Respondent has acted in derogation. of its duty under the Act and has failed to bargain collectively in violation of Section 8(a) (5) and ( 1) of the Act. III. THE REMEDY I have found that the Respondent , by failing to notify the Union of the proposed price changes in the cafeteria , by refusing upon request to bargain concerning such changes, and by unilaterally determining the reasonableness of the proposed price changes, has refused to bargain collectively . In order to effectuate the policies of the Act, I shall recommend that the Respondent be required to notify the Union of any price changes that the caterer in the future may desire to effect, that the Respondent be required, upon request, to bargain collectively with the Union as the exclusive representative of its employees in the appropriate units with respect to the prices of food now charged in the cafeteria, and that the Respondent be required to refrain in the future from determining the reasonableness of proposed changes in the price of food charged in the cafeteria whereby employees in these units may be affected, with- out prior consultation with the Union. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer 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. 3. The following employees of the Respondent at its Baltimore , Maryland, installa- tions constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All salaried, technical, and clerical employees at the ordnance department, Lans- downe, Maryland, plant, excluding all professional employees , all shop clerical employees , all inspectors and testers , guards, and supervisors as defined in the Act. All clerical and technical employees in its electronics division at Friendship Inter- national Airport, Baltimore, Maryland, all clerical and technical employees employed at its Parker Road, Baltimore, Maryland , plant, all clerical and technical employees, including utility men , located at Morrell Park, 2940 Washington Boulevard, working under the direction of the engineering department of the electronics division located at Parker Road, excluding all employees of the engineering and service department, all hourly paid employees, all inspectors and testers, all confidential employees , guards, professional employees, and supervisors as defined in the Act. All salaried, technical, and clerical employees at the air arm division , Friendship International Airport, Fort Meade Road, Maryland; excluding inspectors ; time and motion analysts ; buyers; general subcontract specialists; secretaries to. the division manager, the assistant division manager and the assistant to the division manager, the manager of manufacturing, the contract administrator, the supervisor of industrial relations, departmental managers, subdivision managers , other than section managers, and to the assistant application engineering manager; scholarship employees while in training ; industrial relations assistants and interviewers ; administrative assistants to. the division manager, the manager of manufacturing , departmental manager, and sub- division managers other than section managers ; all professional employees, including, 217-919-66--vol. 15 6-7 0 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but not limited to, engineers, application engineers, manufacturing engineers, test engineers , flight engineers, engineering writers, and nurses; pilots and copilots, guards, and supervisors as defined in the Act. All salaried technical and clerical employees in the management services building, Friendship Airport plants, Baltimore, Maryland, excluding all professional employees, all hourly paid employees, all employees of the engineering and service department, all executive assistants, all inspectors and testers, all shop clerical employees, all con- fidential employees, industrial relations assistants , interviewers , buyers, guards, and supervisors as defined in the Act. All clerical and technical employees in the systems department, Friendship Airport plant, Baltimore, Maryland, excluding all professional employees, all hourly paid employees, all employees of the engineering and service department , all confidential employees , all industrial relations assistants , interviewers, buyers, guards, and super- visors as defined in the Act. All clerical and technical employees of the underseas division at its Parker Road, Baltimore, plant, excluding all employees of the engineering and service department, all hourly paid employees, all confidential employees, all industrial relations assistants, interviewers, buyers, guards, professional employees, and superviors as defined in the Act. 4. The Union at all times material has been and is the exclusive representative of all the employees in the aforesaid bargaining units within the meaning of Section 9(a) of the Act. 5. By refusing , on and since about January 9 , 1965, to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid bargaining units, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 7 of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, I recommend that the Respondent, Westinghouse Electric Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to consult and bargain collectively with Salaried Employees Associa- tion of the Baltimore Division, Federation of Westinghouse Independent Salaried Unions, as the exclusive bargaining representative of all the employees included in the units specifically set forth in paragraph 3 of the Conclusions of Law herein with respect to the reasonableness of proposed changes in food prices at the Respondent's cafeterias. (b) Making determinations with respect to the reasonableness of price changes at our cafeterias proposed by Baltimore Catering Company and affecting any employees in the units above described, without prior consultation with the above-named Union. (c) In any like or related manner interfering with the efforts of the above-named Union to bargain collectively on behalf of the employees in the above-described units. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with Salaried Employees Association of the Baltimore Division, Federation of Warehouse Independent Salaried Unions, as the exclusive representative of all its employees in the aforesaid appropriate units with respect to any changes, now in effect or hereafter proposed, in food prices charged employees at its cafeterias. (b) Post at its locations in Baltimore, Maryland, involved herein, copies of the attached notice marked "Appendix." 15 Copies of such notice, to be furnished by the Regional Director for Region 5, shall, after being signed by an authorized representa- tive of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be "In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order." WESTINGHOUSE ELECTRIC CORPORATION 1093 taken by the Respondent to insure that such notices are not altered , defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith.16 16 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read, "Notify said Regional Director , in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to consult and bargain collectively with Salaried Employ- ees Association of the Baltimore Division, Federation of Westinghouse Inde- pendent Salaried Unions, as the exclusive representative of all the employees in the bargaining units described herein with respect to changes in food prices charged at our cafeterias. WE WILL NOT make any determinations as to the reasonableness of the changes in food prices at our cafeterias proposed by Baltimore Catering Company and affecting any employees in these bargaining units, without prior consultation with the above-named Union. The appropriate bargaining units, herein referred to, are as follows: All salaried, technical, and clerical employees at the ordnance depart- ment, Lansdowne, Maryland , plant, excluding all professional employees, all hourly paid employees, all confidential employees, all inspectors and testers, guards , and supervisors as defined in the Act. All clerical and technical employees at the electronics division at Friend- ship International Airport, Baltimore, Maryland, all clerical and technical employees employed at the Parker Road, Baltimore, Maryland , plant, all clerical and technical employees, including utility men, located at Morrell Park, 2940 Washington Boulevard, working under the direction of the engi- neering department of the electronics division located at Parker Road, excluding all employees of the engineering and service department, all hourly paid employees , all inspectors and testers , all confidential employ- ees, guards, professional employees, and supervisors as defined in the Act. All salaried, technical, and clerical employees at the air arm division, Friendship International Airport, Fort Meade Road, Maryland; excluding inspectors; time and motion analysts ; buyers; general ' subcontract special- ists; secretaries to: the division manager, the assistant division manager and the assistant to the division manager, the manager of manufacturing, the contract administrator, the supervisor of industrial relations , depart- mental managers, subdivision managers other than section managers, and to the assistant application engineering manager; scholarship employees while in training; industrial relations assistants and interviewers ; adminis- trative assistants to: the division manager, the manager of manufacturing, departmental managers, and subdivision managers other than section man- agers; all professional employees , including, but not limited to, engineers, application engineers, manufacturing engineers, test engineers, flight engi- neers, engineering writers, and nurses; pilots and copilots, guards, and supervisors as defined in the Act. All salaried technical and clerical employees in the management services building, Friendship Airport plants, Baltimore, Maryland, excluding all professional employees, all hourly paid employees , all employees of the engineering and service department, all executive assistants, all inspectors and testers, all shop clerical employees, all confidential employees, indus- trial relations assistants, interviewers, buyers, guards, and supervisors as defined in the Act. All clerical and technical employees in the systems department , Friend- ship Airport plant, Baltimore , Maryland, excluding all professional employ- ees, all industrial relations assistants, interviewers, buyers, guards, and supervisors as defined in the Act. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All clerical and technical employees of the underseas division at the Parker Road, Baltimore, plant, excluding all employees of the engineering and service department , all hourly paid employees, all confidential employ- ees, all industrial relations assistants, interviewers, buyers, guards, pro- fessional employees, and supervisors as defined in the Act. WESTINGHOUSE ELECTRIC CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100. Marion Bottling Company, Inc. and International Union of Dis- trict 50, United Mine Workers of America. Case No. 5-CA- 3197. January 21, 1966 DECISION AND ORDER Upon a charge and amended charge duly filed by International Union of District 50, United Mine Workers of America, herein referred to as the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a com- plaint dated September 17, 1965, against the Respondent, Marion Bottling Company, Inc., alleging that the Respondent had engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were served upon the parties. With respect to the unfair labor practices, the complaint alleges, in substance, that the Respondent, in a letter distributed to its employ- ees on or about June 15, 1965, threatened the employees with economic reprisals because of their membership in, activity on behalf of, and adherence to the Union. The Respondent's answer, filed on September 24, 1965, admitted certain jurisdictional and factual allegations of the complaint but denied the commission of unfair labor practices. On October 15, 1965, all parties to this proceeding entered into a stipulation which contains a statement of facts; expressly waives a hearing before a Trial Examiner, the making of findings of fact and conclusions of law, the issuance of a Trial Examiner's decision, and the filing of exceptions and oral argument before the Board; agrees to transmit the case directly to the Board for findings of fact, conclusions of law, and order based upon a record consisting of the charges, com- plaint, answers, affidavits of service, the stipulation, and the letter of June 15, 1965; but provides that the parties may file briefs with the Board. 156 NLRB No. 100.