Ford Motor Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ford Motor Company (Chicago Stamping Plant) and Local 588, United Automobile, Aerospace and Agricultural Implement Workers of America. Case 13-CA- 15340 July 11, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On December 1, 1976, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached 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 complaint alleges that Respondent Ford Motor Company (hereinafter called Respondent), at its Chicago Stamping Plant, refused to bargain and supply information to Local 588, United Automo- bile, Aerospace and Agricultural Implement Workers of America (hereinafter called Union), in regard to the plant's vending machine and cafeteria prices and services. The Administrative Law Judge found that, on the basis of the Board's decisions, in-plant food prices are a mandatory subject of bargaining. However, he nevertheless found that the Board's action in failing to seek review of the Seventh Circuit's reversal of Ladish Co.,2 to the latest Board decision in this area, considered in light of other reviewing courts' refusal to uphold Board decisions in this area (see infra), was a decision to hold that in- plant food prices are not a mandatory subject of bargaining) Accordingly, he concluded that the Respondent did not violate Section 8(a)(5) and (1) by refusing to bargain about such prices and by not supplying the requested information in connection therewith. We disagree on all counts. The facts are not in dispute and may be summa- rized as follows: The Respondent provides its employees with two air-conditioned cafeterias and five air-conditioned vending areas (or coke cribs). The cafeteria and vending areas are serviced by ARA I The General Counsel has made a motion to correct the transcript and states that all parties agree to the corrections. In the absence of any opposition thereto. the motion is hereby granted Services pursuant to a 1972 agreement with the Respondent. Under the agreement, ARA furnishes food and machines. Section 2(d) of the contract states that ARA shall: furnish products of quality in accordance with purchasing specifications that shall have been submitted to and approved by Ford, and in accordance with a price and portion list for said manual food service and vending machines that shall have been submitted to Ford and that shall be subject to review at the request of Ford or Contractor. Section 3(a) of the agreement provides that ARA be reimbursed for all direct costs of the food and vending operations along with a surcharge consisting of an allowance for general administrative costs equivalent to 4 percent of net receipts and a service fee of 5 percent of net receipts. Should the receipts exceed cost plus the 9 percent surcharge, the excess funds shall be returned to the Respondent. When revenues do not exceed the costs of the operation plus the service fee, the Respondent is obligated to subsidize ARA, and in recent years, at times, has had to do so. The agreement further states that the contract is terminable by either party upon 60 days' notice. Although Respondent has at all times refused to bargain as to the prices set by ARA with its approval, it has in the past bargained over the quality of service provided by that caterer. Since 1967, the local contract has included provisions dealing with vend- ing and cafeteria services. The contracts have covered the staffing of service lines, adequate cafeteria supervision, restocking and repairing vend- ing machines, and menu variety. The 1974 local agreement also states, "The Company recognized its continuing responsibility for the satisfactory perfor- mance of the caterer and for the expeditious handling of complaints concerned with such perfor- mance." Employees have a 30-minute lunch period and two 22-minute rest periods. They are not allowed to leave the plant during the 22-minute breaks, and it is not feasible for them to leave during the lunch period. Mobile food vending trucks are not permitted on plant property and are not usually available outside the plant gate. Only an extremely small number of employees (approximately 12 of the 3,600) actually leave the plant during the lunch period. Employees are permitted to bring their own food into the plant. However, the food must be stored in 2 219 NLRB 354 (1975), enforcement denied 538 F.2d 1267 (C.A. 7. 1976). 3 The Administrative Law Judge did not discuss the allegations that Respondent refused to bargain as to services. 230 NLRB No. 101 716 FORD MOTOR COMPANY personal lockers. These lockers are located in rooms which are ventilated but not air-conditioned. There are no refrigeration facilities. During the summer months, the rooms become very hot (temperatures reaching between 80 to 100 degrees) and sticky, and employees have complained about food spoilage. The Respondent has had occasion to use extermina- tor services upon complaints as to sanitary condi- tions in the locker room. On February 6, 1976, the Respondent informed the Union that cafeteria and vending machine prices would be increased by an unspecified amount on February 9. The Respondent refused the Union's request to discuss the increase first, and on February 9 the prices were increased from 5 to 10 cents an item. On February 13, the Union sent the following letter to the Respondent's industrial relations manag- er, Brown, asking to bargain about prices and services: Dear Mr. Brown: As the certified Bargaining Agent for your Production and Maintenance Employees, Local 588 is concerned about prices and services in cafeteria and vending operations. We would like to bargain with you regarding these prices and services. As you know this is a subject of great concern. Good food at reasonable prices is considered to be a condition of employment by our members. If we discusss this properly, we may be able to reach full agreement prior to opening negotiations for a new contract. Sincerely, Richard W. Marco The Respondent responded to the letter on February 18: Dear Mr. Marco, This letter is in response to your letter dated February 13, 1976, requesting to meet with the 4 156 NLRB 1080(1966). 5 172 NLRB 540 (1968). 6 191 NLRB 268 (1971). 7219 NLRB 354(1975). 8Package Machinery Company v. N.LR.B.. 457 F.2d 936 (C.A. 1. 1972). 9 Westinghouse Electric Corporation v. N.LR.B., 387 F.2d 542 (C.A. 4, 1967); McCall Corporation v. N.LR.B., 432 F.2d 187 (C.A. 4, 1970). N.L. R. B. v. Ladish Co., 538 F.2d 1267 (C.A. 7, 1976). " We note that the instant case, on its facts, is in many respects a stronger case than Ladish for adhering to our position. Unlike Ladish, where the respondent had no input on prices. the Respondent in this case retains influence over cafeteria and vending machine prices by its nght to review prices and its leverage of the subsidy agreement. In addition, there also exists the possibility for the Respondent to make a profit on the food service Company for the purpose of negotiating prices and services provided by A.R.A. food service. Similar requests have been made by the Union in the past, and that Company's response has been the same, that food prices and services are not a proper subject for negotiations. Appropri- ately, your request is denied. T. M. Brown In the meantime, the Union, on February 16, 1976, began a boycott of the food service operations and over half of the employees participated. The boycott lasted over a month, but did not result in any changes in the prices. On March 23, 1976, the Union requested information concerning the Respondent's role in cafeteria and vending operations in order to administer the existing contract and to prepare for upcoming negotiations. The Respondent declined. The Administrative Law Judge correctly found- and the Respondent concedes in its brief-that the present case falls within the factual and legal context of the Board's decisions in Westingthouse Electric Corporation,4 McCall Corporation,5 Package Ma- chinery Company,6 and Ladish, 7 and that on the basis of those decisions in-plant food prices are a manda- tory subject of bargaining. Had he followed the principles established in such cases, therefore, he necessarily would have found, as we do, that Respondent violated 8(a)(5) and (1) when it refused to bargain about such matters. However, as previous- ly indicated, the Administrative Law Judge, relying on the First,8 Fourth,9 and Seventh'° Circuits' reversal of the Board's finding of a violation in the above-mentioned cases, coupled with the Board's failure to seek certiorari in Ladish, erroneously found that the Board has since decided that in-plant food prices are not a mandatory subject of bargaining and hence there was no violation in Respondent's refusal to bargain about them. With all due respect to the First, Fourth, and Seventh Circuits, we adhere to our position that cafeteria and vending machine prices are a mandato- ry subject of bargaining." Nor does the Board's failure to seek certiorari in those cases indicate an operation. Also, since 1967, the parties in this case have bargained over in- plant food services. No such bargaining history was present in Ladish. Moreover, in Ladi.h, the court implied that "brown-bagging" is a viable alternative to purchasing lunch from the commercial food service. However. in this case, employees have complained about spoilage of food stored in their lockers until lunch, as well as unsanitary conditions in the locker room (wherein the Respondent has found it necessary on occasion to extermi- nate). Additionally. the employees have apparently been so concerned with the food pncing that over half of them participated in a boycott of the Respondent's food service operations. There was no such labor strife involved in Ladish. Lastly, in Ladish the employees were represented by seven unions. The court therein projected that each time the food prices were raised "the Company could be compelled to engage in seven rounds of negotiations." 538 F.2d at 1272. This fact, the court declared. "provides a (Continuedj 717 DECISIONS OF NATIONAL LABOR RELATIONS BOARD abandonment of its position that in-plant food prices are a mandatory subject of bargaining, and any assumptions to the contrary are totally unfounded and unwarranted.12 Accordingly, we find that Re- spondent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain about the price increases it placed into effect. We further find that Respondent violated the same sections of the Act by also refusing to bargain about the food services provided by it through a contract with ARA. The Respondent acknowledges that certain aspects of food services are mandatory subjects of bargaining and that the 1974 contract between itself and the Union contained provisions concerning food services.13 Respondent, however, argues that it has not refused to bargain about the food services provided here. We find no basis in the record to support that argument. To the contrary, the Respondent in its denial of the Union's request to bargain about food prices and services, supra, stated, "food prices and services are not a proper subject for negotiations." We cannot imagine a more explicit refusal to bargain. Nor is there any evidence that bargaining about such service occurred, or that Respondent, its stated refusal to the contrary, stood ready or attempted to bargain about food services. Accordingly, we find that the Respondent refused to bargain about the food services provided its employ- ees. The Union also requested information about the Respondent's role in the cafeteria and vending machine operations in order to police the existing contract and to prepare for bargaining. We have found that food prices and services are mandatory subjects of bargaining. The requested information is clearly relevant to those subjects and hence is necessary to the Union's fulfilling its duty as a bargaining agent also to those matters.14 THE REMEDY Having found that the Respondent has unlawfully refused to bargain and supply information to the Union concerning food prices and services, we shall order that it cease and desist therefrom and take certain affirmative action to effectuate the policies of good example of a situation in which bargaining could be both disruptive of stable relations and economically wasteful." Id. In the instant case, however, the employees are represented by a single union. While we adhere to the view that the number of unions representing employees at a single plant is not a factor in resolving this issue, we nevertheless note that, even in the court's view, there is no potential for conflicting union demands in this case. 12 By relying on U.S. court of appeals' decisions which are contrary to applicable Board precedent, the Administrative Law Judge in this case has committed an error. It is not for an Administrative Law Judge to speculate as to what course the Board should or would follow where a circuit court has expressed disagreement with the Board's views. That is the province of the Board alone. It remains the Administrative Law Judge's duty to apply established Board precedent which the Supreme Court or the Board has not the Act. As we held in Westinghouse Electric Corp., supra, "It is sufficient compliance with the statutory mandate ... if management honors a specific union request for bargaining about changes made or to be made." 156 NLRB at 1081. Accordingly, as in Westinghouse, our order will not require the Respon- dent "to bargain about every proposed price change in food prices before putting such change in effect." We will require the Respondent to bargain on such price change only after they are determined unilater- ally and upon a request of the Union. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce 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. At all times material herein, the Union has been and is the exclusive representative of all employees in the following unit within the meaning of Section 9(a) of the Act: All production and maintenance employees in the Respondent's facility at Chicago Heights, Illinois, but excluding general office employees and clerical employees other than shipping and receiving clerks, employees in the Industrial Relations and methods and work standards department, employees engaged in designing, drafting, laboratory, photographic and other technical, experimental and/or research work, cafeteria and dining room employees, plant protection and fire department employees, guards, professional employees, foremen, trainee foremen and all other supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. By refusing, on and since February 18, 1976, to bargain collectively with the Union as the exclusive representative of its employees in the aforesaid bargaining unit, concerning plant vending machine and cafeteria services and price changes, Respondent has engaged in and is engaging in unfair labor reversed. Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1963); Novak Logging Company, 119 NLRB 1573, 1575-76 (1958); Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 773 (1957). 13 The Board and the courts have found a wide variety of subjects to be material conditions of employment falling within the scope of compulsory bargaining. Among such conditions are in-plant feeding, Inland Steel Company v. N.LR.B., 170 F.2d 247 (C.A. 7, 1948); improvements in lunchroom equipment and supplies, Preston Products Company, Inc., 158 NLRB 322 (1966); the scheduling of coffeebreaks, and providing the service of free coffee, Fleming Manufacturing Company, Inc., 119 NLRB 452 (1957). 14 N.LR.B. v. Acme Industrial Co., 385 U.S. 432 (1967). 718 FORD MOTOR COMPANY practices within the meaning of Section 8(a)(1) and (5) of the Act. 5. By refusing, on and since February 18, 1976, to bargain and to supply the information requested by the Union concerning the Respondent's role in the cafeteria and vending machine operation, which information is necessary for the Union's performance of its duty as exclusive bargaining agent, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) and (5) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Ford Motor Company (Chicago Stamping Plant), Chicago Heights, Illinois, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing, upon request, to bargain collectively with Local 588, United Automobile, Aerospace and Agricultural Implement Workers of America, as the exclusive bargaining representative of its employees in the following appropriate unit with respect to food services and changes in food prices in the vending machines and cafeteria: All production and maintenance employees in the Respondent's facility at Chicago Heights, Illinois, but excluding general office employees and clerical employees other than shipping and receiving clerks, employees in the Industrial Relations and methods and work standards department, employees engaged in designing, drafting, laboratory, photographic and other technical, experimental and/or research work, cafeteria and dining room employees, plant protection and fire department employees, guards, professional employees, foremen, trainee foremen and all other supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. (b) Refusing, upon request, to supply the aforesaid labor organization with the information necessary for collective bargaining, in relation to its role in the cafeteria and vending machine operation. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise 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 food services and any changes, now in effect or hereafter made or proposed, in food prices charged employees in the vending machines and cafeterias. (b) Upon request, supply the above-named labor organization with information necessary for collec- tive-bargaining, in relation to its part or role in the cafeteria and vending machine operations. (c) Post at its plant in Chicago Heights, Illinois, copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent's representative, shall be posted by the Respondent 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. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 's 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 Pursuant 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 WE WILL NOT refuse to bargain collectively with Local 588, United Automobile, Aerospace and Agricultural Implement Workers of America, as the exclusive representative of all our employees in the bargaining unit described below with respect to food services and changes in food prices in the vending machines and cafeterias: All production and maintenance employ- ees in the Respondent's facility at Chicago Heights, Illinois, but excluding general office employees and clerical employees other than shipping and receiving clerks, employees in the Industrial Relations and methods and work standards department, employees en- 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in designing, drafting, laboratory, photographic and other technical, experi- mental and/or research work, cafeteria and dining room employees, plant protection and fire department employees, guards, professional employees, foremen, trainee foremen and all other supervisors as defined in the Act. WE WILL NOT refuse to supply the above- named Union with information necessary for collective bargaining, in relation to its role in the cafeteria and vending machine operation. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain collectively with the above-named Union, as the exclusive representative of all our employees in the afore- said unit with respect to food services and any changes, now in effect or hereafter made or proposed, in food prices charged our employees in the vending machines and cafeterias. WE WILL, upon request, supply the above- named Union with information necessary for collective bargaining in relation to its role in the cafeteria and vending machine operation. FORD MOTOR COMPANY DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: This case was heard on August 16, 1976, in Chicago, Illinois, upon a complaint issued by the General Counsel on May 16, 1976, and an answer filed by Respondent Ford Motor Company. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America intervened after the hearing, and I shall refer to it and its Local 588 collectively as the Union unless separate identification be necessary. The Company is an employer within Section 2(6) and (7) of the Act, and the International and Local 588 are labor organizations within Section 2(5) of the Act. I. THE UNFAIR LABOR PRACTICES The Issue Respondent has a Stamping Plant in Chicago Heights, Illinois. The plant buildings occupy an area one-quarter mile by one-quarter mile and employ approximately 3,600 hourly rated production employees on a three-shift opera- tion. These employees are represented by the International Union, with Local 588 as its administrative component, and there is no other union in the plant. Collective- ' ARA has been providing such services since 1970. Another caterer provided similar services before that time. bargaining agreements have been operative between the parties at all material times here. The principal issue is whether Respondent violated Section 8(aX)() and (5) of the Act by refusing to bargain with the Union concerning cafeteria and vending machine prices at the Stamping Plant. Conceding this refusal to bargain, Respondent asserts that cafeteria and vending machine prices are not "terms and conditions of employ- ment" within Section 8(d) of the Act and, therefore, that it was under no obligation to negotiate over that subject. Whether such prices are a mandatory subject of bargaining under the Act is not a novel question. As will be discussed, Board decisions uniformly have held that it is mandatory, while those courts of appeals dealing with the problem have just as uniformly held otherwise. Cafeteria and Vending Machine Facilities Respondent makes available to its employees certain in- plant cafeteria and vending machine services which are provided by ARA Services, Inc., pursuant to a 1972 "catering-vending" agreement between Respondent and ARA.1 This agreement provides, in part, that ARA will manage and operate the manual food service at the plant and install, maintain, and service the vending machines; provide all food, beverages, and materials for the operation along with necessary management and labor personnel; furnish products of quality in accordance with specifica- tions approved by Respondent and in accordance with a price and portion list that shall also have been submitted to Respondent and that shall be subject to review at either party's request; permit Respondent to inspect all machines and equipment to determine compliance with established standards of quality and cleanliness. The agreement provides that ARA be reimbursed for all direct costs of food and vending operations along with an allowance for general administrative costs equivalent to 4 percent of net receipts and a service fee of 5 percent of such receipts. If gross receipts from the operation are less than the sum of the costs of the operation plus the service fee, Respondent is obligated to reimburse ARA for the deficit by an annual amount not to exceed $52,000. The parties stipulated in this connection that In some months revenues exceed costs and in some months the opposite has occurred. When revenues exceed costs, the Employer realizes income, and when costs exceed revenues a loss occurs. For all recent years, the operation has been on a loss basis and the Employer has made up the loss to ARA. The agreement further provides that ARA is an indepen- dent contractor and that the contract is terminable by either party upon 60 days' notice. ARA maintains two cafeterias and five vending machine areas (or coke cribs) in the plant for bargaining unit employees. 2 The larger (or "hourly") cafeteria, on the second floor of the plant, serves hot food from steam tables and also houses coin-operated vending machines which dispense beverages, hot and cold food, pastry, and candy. 2 ARA also maintains an executive dining room and a salaried cafeteria which are not available to bargaining unit employees. 720 FORD MOTOR COMPANY This cafeteria is air-conditioned and seats between 400 and 500 persons. It is open for breakfast between 5 a.m. and 8 a.m., and also during lunch periods. It is open during shift changes, as well, but only food from the vending machines is available at those times. The second (or "satellite") cafeteria also is air-condi- tioned; it accommodates 50 to 100 persons and is open for two of the three lunch periods on the day and evening shifts. This cafeteria does not have a steam table or cafeteria service; it does have approximately 12 vending machines serving hot and cold sandwiches, beverages, stews, soups, spaghetti, pastry, ice cream, and candy. The five coke cribs, which are air-conditioned and enclosed, are scattered throughout the plant and are open during all meal and rest periods. Each of four cribs accommodates 40 to 50 persons, and the fifth between 75 and 100. The cribs have vending machines dispensing the same food items available in the satellite cafeteria. Employees on all three shifts have a 30-minute lunch period. In addition, employees working on production lines - approximately 1,600, or approximately 50 percent of the employees on the first two shifts - have a 5-minute washup period before their lunchbreak and two 22-minute rest periods. The following table 3 is a representative showing of patronage of cafeteria and vending machine services during the indicated weeks: Week 10/12-10/18/75 11/15-11/21/75 1/10--1/16/76 2/28--3/5/76 All Hourly Total Vending Cafes Cafes Plant Pop. Sales 6,745 5,600 3,938 3,865 3,947 3,873 875 820 4,445 3,755 3,750 3,950 96,279 61,568 70,560 16,741 and smelly" in summer months when area temperatures frequently range between 80 and 100 degrees and go even higher. Marco further testified to having received employee complaints concerning food spoilage resulting from locker room conditions. 5 And Respondent has had occasion to use exterminator services upon complaints from employees as to sanitary conditions in the locker room. Respondent-Union Relationship as to In-Plant Food Services Respondent and International UAW have had a series of collective-bargaining agreements covering plant employees since approximately 1956 when the International was certified as their statutory bargaining representative. These have actually been national agreements, and the national contract at material times here was effective from Novem- ber 1973 until September 1976. Pursuant to practice, Local 588 and Respondent have also negotiated a series of local agreements concerning local issues, and the last such agreement ran from June 1974 until September 1976. Neither the 1973 International Agreement nor the 1974 Local Agreement contains any provision regarding cafete- ria or vending machine prices. (During negotiations for the 1974 Local Agreement, Respondent had rejected Local 588's request that it bargain about in-plant food prices.) Respondent has meanwhile recognized "its continuing responsibility for the satisfactory performance of the caterer and for providing the Union with a means for registering and expeditious handling of complaints con- cerned with such performance." This "recognition" ap- pears as the last paragraph in the following letter of understanding, dated October 29, 1967, from Respondent to Local 588, this letter being included in the parties' 1970 Local Agreement (Jnt. Exh. 8, pp. 5-6): In the vicinity of Chicago Heights and within several miles from Respondent's plant, are more than a dozen other industrial plants employing several thousand employ- ees. There are five short-order eating places and five sitdown restaurants within 3 miles of the plant, and some 25 establishments within 4 miles. Respondent agrees that it is not feasible, presumably because of time limitations,4 for employees to leave the plant during their 22-minute rest breaks, and, as indicated above, their lunch period is only 8 minutes longer. Mobile food vending trucks are not permitted on plant property, and are not usually available outside the plant gate. Comparatively few employees actually leave the plant during lunch periods. Employees are permitted to bring their own food into the plant which they may store only in their personal lockers and not in working areas. Food may only be eaten in the cafeterias or in break areas or coke cribs. The locker rooms are ventilated but not air-conditioned and employees have no facilities for refrigerating food they bring in. According to Local 588's president, Richard Marco, the locker rooms are not well ventilated and become "very hot and sticky 3 Page 29 of the transcript is hereby corrected to conform with the statistical data in the table. The record is also corrected to reflect the changes indicated at page 5, fn. 5. of the General Counsel's bnef 4 Moreover. employees may not leave the plant without permission during their 22-minute breaks. Improved Vending and Cafeteria Service This is to advise that in accordance with our discussion during 1967 local negotiations, a meeting was held between representatives of the Company and Al Green Enterprises, Inc. for the purpose of improving cafeteria and vending services. It was agreed there will be a reassignment of serving and kitchen duties to ensure additional personnel for the serving of steam table items at all times during regular lunch periods. Additionally, assurance was given that the Cafeteria Manager or an Assistant Manager, during all lunch periods, will be stationed in the cafeteria to ensure the adequacy of food, service, condiments, silverware and utensils. Silverware will be subjected to continuing additional inspection after washing, and in the event of a temporary shortage of personnel due to absenteeism, etc., a standby supply of clean silverware will be available to ensure an adequate supply during all feeding periods. Marco. while testifying on August 16. 1976. said that he received the last such complaint in May 1976. 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To provide condiments for sandwiches dispensed in the "Coke Cribs," dispensers of mustard and catsup will be installed. It was further agreed that Al Green Enterprises, Inc. will without undue delay following the strike provide a qualified expert from its home office to study local conditions for the purpose of providing attractive "weekly specials," more varied menus and to devise means for improving cashier service. Additionally, a vending service specialist will study the plant's vending requirements and facilities, includ- ing the added milk, pastry and ice cream machines for the purpose of recommending an improved servicing schedule and any additional manpower necessary to implement such schedules. Each vending crib will be serviced at least once a shift. To ensure that vending machines will be given prompt servicing in the event of mechanical break- down, an instant means of communication with the mechanic will be provided. The Local Agreement of 1970 also contains two other communications from Respondent to Local 588. The first, dated November 15, 1964, reads (Jnt. Exh. 8, p. 40): Supplemental Eating Facilities This is to advise that in accordance with our discussions during 1964 local negotiations, the Compa- ny intends to install a permanent type eating facility equipped with vending machines in the new addition to serve those employees working in the new addition and the shipping dock. And the second, dated December 11, 1970, states (Jnt. Exh. 8, p. 7): Shipping Dock Cafeteria Hours Following the conclusion of 1970 local negotiations, the Company will arrange for the Shipping Dock Cafeteria to be open on all shifts, at the same times that the main cafeteria is open. The 1974 Local Agreement contains a letter of under- standing from Respondent to Local 588, stating in relevant part that "as discussed in 1973 local negotiations," "The five (5) employee break areas [which I presume are the aforementioned "coke cribs"l will be enclosed and air- conditioned with an adequate number of window type air- conditioning units" (Jnt. Exh. 7, p. 2). In their Local Agreement of 1974 the parties also agreed as follows, concerning "Vending and Cafeteria Service" (Jnt. Exh. 7, p. 5): 1. CAFETERIA SERVICE The Company assures the Union that steam table items will be available at all times during the regular lunch period and that a comparable selection of entrees, salads and desserts will be available during all regular lunch periods. In addition, the Company will make arrangements for a delicatessen type sandwich service in the cafeteria. Cafeteria supervision will be available during all lunch periods to ensure that employees will be served in a reasonable length of time through the main serving lines as well as to provide for the adequacy of food service, condiments and utensils. 2. VENDING SERVICE AND VARIETY To assure that vending machines will receive prompt servicing in the event of a mechanical breakdown, a sticker will be affixed to each machine indicating the number to call for repair. Further, the Company assures the Union that a greater variety of selections will be maintained in the existing vending machines and that the quality of such items will continue to meet Company standards. The Company recognizes its continuing responsibili- ty for the satisfactory performance of the caterer and for the expeditious handling of complaints concerned with such performance. The 1970 and 1974 Local Agreements also show that the parties have discussed and that Respondent has agreed on various items of plant maintenance, including the inspec- tion and improvement of ventilation systems affecting, among others, the plant locker room (Jnt. Exh. 7, pp. 3-4; Jnt. Exh. 8, p. 4). The Current Dispute On or about February 6, 1976, Respondent informed Local 588 that ARA would be increasing the prices of certain cafeteria and vending items, effective February 9, 1976. Local 588 had not been previously advised of the increases, and Respondent did not furnish specific infor- mation on February 6 about the amount of the increases. Local 588 requested at the time that the increases be postponed until Local 588 could discuss the matter with Respondent, but Respondent refused. The increases went into effect on February 9; most affected items were raised 5 cents and some were raised 10 cents. By letter dated February 13, 1976, Local 588 asked Respondent to bargain concerning "prices and services in cafeteria and vending operations," and Respondent again declined on February 19 for the stated reason that "food prices and services are not a proper subject for negotiations." By letter to Respondent on March 23, 1976, Local 588 requested certain information concerning Respondent's role in cafeteria and vending operations in order, the letter stated, to administer existing collective-bargaining provi- sions (the June 20, 1974, agreement set forth above) and to prepare for upcoming negotiations in September 1976 when, by their terms, the national and local agreements between Respondent and the Union would expire. Local 588 thus sought, among other things, information as to Respondent's maintenance responsibilities, Respondent's profits from the food operations, Respondent's control of prices, and Respondent's contractual arrangement with any food supplier. On April 9, 1976, Respondent turned down Local 588's request for information and again refused, and it has continued to refuse, to bargain about cafeteria and vending prices. 722 FORD MOTOR COMPANY Meanwhile, on February 16, 1976, Local 588 began a boycott of the food services operations. "Substantially in excess of half of the members of Local 588" observed the boycott, according to the parties' stipulation, and most of these observing employees brought in their lunches during the period. Local President Marco testified that a few employees left the plant to eat and that some employees did not eat at all. The boycott did not cause any price reductions, with the possible exception that some special dishes were made available. The cafeteria boycott was ended by Local 588's Shop Committee on May 19, 1976, and the boycott of vending machines was terminated on June 7, 1976. Contributing to this decision to call off the boycott, according to President Marco, was the onset of hot weather with consequent problems of spoilage of food the employees brought into the plant. It may be fairly said, however, and I find, that a substantial reason for abandoning the boycott was its ineffectiveness in reducing prices. In July 1976, the International notified Respondent of its desire to terminate their current national contract and all local agreements. While not in this record, the news media report that Respondent and the International have con- cluded negotiations for a new contract. However, no party has requested that the results of these latest negotiations be made part of this record, and nothing further need be said in that regard. Does the Act Require Respondent To Bargain Concerning the Prices of In-Plant Food? Board and Court Decisions By a divided vote (3-2) in Westinghouse Electric Corp., 156 NLRB 1080 (1966), the Board held that an employer in an urban industrial setting is required under the Act to bargain with a statutory representative of its plant employees concerning food prices charged in on-site cafeterias. The in-plant cafeteria facilities were operated by a catering service pursuant to contract with Westinghouse; under the contract, the caterer paid Westinghouse a rental of $1 a year and Westinghouse provided the capital equipment necessary for operating the facilities. The catering contract also provided, among other things, that the "quantity and prices of the meals served, and the hours of service thereof. . . shall at all times be reasonable" and it also gave Westinghouse a right to conduct periodic audits of the cafeteria accounts. The caterer announced an increase in the price of a food item and the union involved sought to meet and discuss the matter with Westinghouse. Westinghouse refused the union's request, and the Board concluded in finding a violation of Section 8(a)(5) that it is "within the objective and meaning of the Act to require parties to submit such controversies to the healing processes of collective bargaining" (156 NLRB at 1082). On review of the Westinghouse case, a divided court of appeals, sitting en banc, reversed the Board and held that the in-plant food prices were not a mandatory subject of bargaining. Westinghouse Electric Corporation v. N.L.R.B., 387 F.2d 542 (C.A. 4, 1967). The court stated in part that Nor was such evidence offered in the present case. The 1973 contract between Respondent and the Union included wage "The case before us does not even remotely involve any question of job security or any other issue which employees could traditionally consider 'vital.' Nor is there any evidence that the inclusion of this issue here within the collective bargaining framework is a widespread industrial practice" (387 F.2d at 548, emphasis supplied). 6 In McCall Corporation, 172 NLRB 540 (1968), employees were able to purchase food "in a company-owned and - operated cafeteria" and "out of vending machines owned by a contractor but supplied with company cafeteria- prepared and -priced food" (172 NLRB at 541). There were some 16 unions in the plant, and McCall refused to negotiate with one of them concerning food prices. Citing its Westinghouse case, supra, and an earlier Weyerhaeuser Timber Co. case (87 NLRB 672 (1949)) involving a sawmill and lumber camp setting, a Board panel concluded that food prices "constitute 'conditions of employment' and bargainable matters" and that McCall violated Section 8(a)(5) by refusing to bargain over such prices. By divided vote on review, the Fourth Circuit found that "the difference between the indirect control exercised in Westinghouse and the direct control in McCall over the quality and prices of food is not of sufficient significance to affect the result." McCall Corporation v. N. LR.B., 432 F.2d 187, 188 (1970). The court rejected the Board's request that the court overrule its Westinghouse ruling and it set aside the Board's McCall decision. The next in this series of cases cited by the parties is Package Machinery Company, 191 NLRB 268 (1971), reversed 457 F.2d 936 (C.A. 1, 1972). The company in this case had a contract with a caterer to operate in-plant cafeteria and vending machine services, and under their arrangement the company paid a specific monthly subsidy to the caterer. The union involved requested that the company furnish it a copy of the company's contract with the caterer and that the company bargain with it concern- ing food and beverage prices. The company refused, and a Board panel found a violation of Section 8(aX5) upon the basis of its Westinghouse and McCall decisions. Referring to the aforementioned court decision in Westinghouse, the First Circuit set aside the Board's Package Machinery order and observed, inter alia, that "If food costs go up from time to time, as inevitably they seem to, it would appear more appropriate to bargain over wages .... "(457 F.2d at 938).7 Finally we come to Ladish Co., 219 NLRB 354 (1975), where, as the General Counsel mentions, the Board undertook a "thorough examination" of the issue presented here (G.C. brief, p. 15). The employer in that case made hot and cold food available to its employees through contracts with vending machine companies (caterers). The caterers determined the prices of food items and the employer received from the caterer a commission on food sales to cover the use of floor space, overhead, and operational costs. Employees received a 15-minute paid lunch period and were not permitted to leave the plant for lunch. About 70 percent of the employees purchased their lunches from vending machines, 90 percent obtain beverages from the machines, and the other employees bring their lunches. increases as well as a cost-of-living allowance geared to the Combined Consumer Price Index (Jnt. Exh. 4. pp. 96-97). 723 DECISIONS OF NATIONAL LABOR RELATIONS BOARD One of several involved unions filed a grievance protesting an increase in all food items, and the employer's response was to refuse to negotiate. In a full-dress discussion of the issue, as indicated above, a Board panel (with one dissent and one concurrence) concluded that in-plant food prices "constitute 'conditions of employment' and bargainable matters" (219 NLRB at 358), and it directed the employer to bargain concerning those matters. The Board brought enforcement proceedings before the Seventh Circuit in the Ladish case. Denying enforcement and in effect joining the First and Fourth Circuits, the court held that "vending machine food prices are not a material or significant condition of employment at Ladish. The impact of these prices is too remote to require bargaining." N.L.R.B. v. Ladish Co., 538 F.2d 1267, 1272 (C.A. 7, 1976). The Board did not file a petition for certiorari in Ladish. Discussion The facts of the present case fall within the factual-legal contexts of the Westinghouse, McCall, Package Machinery, and Ladish cases. It is unnecessary, in my opinion, to have discussed these cases in greater detail for it is beyond question that in-plant food prices are a mandatory subject of bargaining on the basis of the mentioned Board decisions. It seems equally clear that such prices are not a required subject of bargaining if the mentioned court decisions be controlling. The present case is therefore not one that requires in-depth analyses of the cases and of underlying theory. Administrative Law Judges are bound by Board deci- sional law, needless to say, despite reversals on the same point of law by courts of appeals. The question I have, however, is what interpretation to accord the Board's determination not to seek certiorari in the Ladish case. Complicating the problem is the fact that such determina- tion might have been influenced by the lack of a conflict between the circuits and the Board's awareness of the difficulty of obtaining Supreme Court review without a conflict. In other words, it is possible that the Board may 8 It is noted that in its brief (p. 16) filed with the court in the Ladish case, the Board urged that the facts therein "are stronger" than in the Westinghouse. McCall, and Package Machiners cases. " In view of these conclusions, it is unnecessary to consider Respondent's "zipper-clause" contention. '0 In the event no exceptions are filed as provided by Sec. 102.46 of the still be desirous of testing the issue in other courts of appeals before giving up on the issue or before seeking certiorari without a conflict. With less certainty than I would like, I nonetheless conclude that the action of the Board in not seeking certiorari in the Ladish case is more significant than might generally be the situation. When the Board decided the Ladish case, it had been reversed by the First and Fourth Circuits, and its decision in the Ladish case represented a "thorough examination" of the issue and was, in fact, a major decisional effort. On its facts the case was a strong one, in my opinion, for presenting the Board's position on the issue.8 Having made this major effort and lost again and then determining not to seek certiorari in the Ladish circumstances, the Board has now decided to hold - at least I so interpret its action - that in-plant food prices are not a mandatory subject of bargaining. I thus conclude that Respondent did not violate the Act by refusing to bargain about such prices and that it also did not violate the Act by refusing to furnish information in such connection. Nor is this result affected by the fact that Respondent has bargained with Local 588 concerning other (nonprice) aspects of its in-plant food facilities. N.L.R.B. v. Ladish Co., 538 F.2d at 1272.9 I shall accordingly recommend that the complaint be dismissed. CONCLUSIONS OF LAW i. Respondent is an employer within Section 2(6) and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. 3. Respondent has not engaged in the violations of Section 8(a)(l) and (5) alleged in the complaint. Upon the foregoing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 10 ORDER It is ordered that the complaint be dismissed. Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 724