Henry Vogt Machine Co.

HENRY VOGT MACHINE COMPANY 363 Henry Vogt Machine Company and United Steel- workers of America, AFL-CIO-CLC. Case 9- CA-13709 August 21, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENE.I O, AND TRUESDALE On January 23, 1980, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, General Counsel filed ex- ceptions and a supporting brief, and Respondent filed an answering brief in support of its opposi- tions to General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The basic facts, as set forth in the Decision of the Administrative Law Judge, are largely undis- puted. On August 4, 1978,' a majority of the em- ployees in the metallurgy laboratory voted to be represented by the Charging Party. The metallurgy laboratory employees, of which there were ap- proximately 12, then became a part of the larger production and maintenance unit. The Charging Party had represented the production and mainte- nance employees for many years and had entered into a series of collective-bargaining agreements covering these employees. At the time of the repre- sentation election among the laboratory employees, the contract covering the production and mainte- nance employees was about to expire. The parties agreed to postpone bargaining for the laboratory employees until the parties began negotiations for a new contract for the entire unit. Bargaining for the new, expanded unit began in early September and concluded with ratification of the resulting collec- tive-bargaining agreement by the membership on October 22 and its execution by the parties on Oc- tober 23. It is undisputed that, prior to selecting the Union as their collective-bargaining representative, the laboratory employees were permitted to utilize Re- spondent's cafeteria, where they were able to pur- chase five hot lunches weekly at a total cost to each laboratory employee of $1 per week. Respon- dent's organized employees were prohibited from eating in the cafeteria, and did not receive subsi- i Unless olherl.e noted, all dates are in 1978 251 NLRB No. 40 dized lunches. During the course of the bargaining sessions, there was a brief exchange regarding a union proposal that Respondent build a lunchroom for unit employees, but no discussion of the cafete- ria privileges enjoyed by the laboratory employees. Nevertheless, upon execution of the collective-bar- gaining agreement on October 23, Respondent pro- hibited laboratory employees from using the cafete- ria. This abrupt discontinuation of benefits was made without prior notification to or consultation with the Union. The Administrative Law Judge found that this action violated neither Section 8(a)(3) nor (5) of the Act, concluding that th- Union's failure to bring up this benefit during bargaining was tanta- mount to a waiver, and that the withdrawal of cafeteria privileges was neither discriminatorily motivated nor inherently discriminatory. We do not agree and, for the reasons set forth below, find that the revocation of cafeteria privileges for the laboratory employees was violative of Section 8(a)(3), (5), and (1) of the Act. With regard to the 8(a)(5) allegation, we cannot agree that the Union waived its right to bargain over the cafeteria privileges for the laboratory em- ployees by failing to raise the issue during bargain- ing. Although the employees feared that the privi- leges would be withdrawn in the event the Union was victorious, and had expressed their fears to the Union's bargaining committee while contract pro- posals were being formulated, Respondent did not announce its intention to unilaterally alter the status quo by barring laboratory employees from the cafeteria until Friday, October 20, just 2 days before the contract was presented to the member- ship for ratification. That the bargaining committee chose not to act on the employees' speculations and conjectures, but rather to await Respondent's actions, was entirely reasonable since during the course of bargaining over a period of months Re- spondent gave no indication that it intended to ter- minate the cafeteria privileges for laboratory em- ployees. Indeed, at no time during negotiations did the parties discuss or even mention this issue. Under these circumstances, we conclude that there is no "clear and unequivocal" evidence pointing to a "conscious relinquishment" by the Union of any right to bargain about the cafeteria privileges, and that the Union's failure to raise the issue was not tantamount to a waiver. N L Industries, Inc., 220 NLRB 41, 43 (1975); Perkins Machine Company, 141 NLRB 98, 102 (1963). This is particularly true in the instant case because the genesis of the em- ployees' speculation was certain statements made by Respondent during the election campaign, but never repeated thereafter. Our colleague's reliance 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon cases such as Clarkwood Corporation, 233 NLRB 1172 (1977), and Medicenter, Mid-South Hospital, 221 NLRB 670 (1975), is therefore mis- placed, as in each case the union had clear and un- equivocal notice of the employer's proposed changes. Having thus determined that the facts of the instant case do not reflect a waiver by the Union, we find that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally eliminat- ing the lunchroom privileges of the laboratory em- ployees. Contrary to our dissenting colleague, we also find that Respondent's unilateral revocation of the laboratory employees' cafeteria privileges violated Section 8(a)(3) of the Act. It is clear that the af- fected employees were deprived of a significant benefit because they chose to be represented by a collective-bargaining agent. Indeed, Respondent admitted at the hearing that the sole reason the cafeteria benefits were withdrawn was the labora- tory employees' decision to be represented by the Charging Party.2 Despite the foregoing, the Ad- ministrative Law Judge found "insufficient evi- dence to establish that the change in benefits was discriminatorily motivated or inherently discrimina- tory." We do not agree. Respondent has not come forth with any substantial justification for its ac- tions, which we find to be inherently discrimina- tory. 3 We conclude that the abrupt, unilateral change in working conditions after the laboratory employees chose to be represented by the Charging Party contained a clear and dramatic message for the employees who chose the Union and for the re- maining unrepresented employees, and thereby dis- couraged membership in unions and coerced em- ployees in the exercise of rights guaranteed them in Section 7 of the Act. Having found that Respondent violated Section 8(a)(3), (5), and (I) of the Act by revoking the cafeteria privileges of the laboratory employees, we shall order Respondent to cease and desist from its unlawful actions, restore the status quo ante, and make the employees whole for losses suffered. 4 z Respondent further admitted that there was no substantial change il the number of laboratory employees between the election and the discon- tinuance of the cafeteria privileges. Thus, it cannot he said that the depri- vation of access to the cafeteria was occasioned by space ctinstraints 3 A'L.R.B v Great Dane T ruiers. Inc.. 388 U.S 26 (1967). 4 it his dissent. Member Penello relies heavily upon his dissenting opinion in Federal-Mogul (Corporation. Bower Roller Bearing Division, 209 NLRB 343 (1974). Member Penello's arguments failed to persuade a ma- jority of the Board then ad fail to persuade a majority of the Board now. Nor call we agree with Member Penello's gratuitous comments ac- cusing, or at the minimum implying. that the Union failed to bargain in good faith. I as not the Union that "upset the apple cart" by unilateral- ly altering existing terms and conditionls of employment. Whatever state- ments were made during the election campaign concerning the cafeteria privileges. the parties thereafter bargained i good faith and quickly reached a mutually satisfactory collective-bargaininig agreement. Only upon the conclusion of fruitful bargaining did Respondent announce its ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Henry Vogt Machine Company, Louisville, Ken- tucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Withdrawing cafeteria privileges or otherwise discriminating against employees because they choose to be represented for purposes of collective bargaining by United Steelworkers of America, AFL-CIO-CLC, or any other labor organization. (b) Refusing to bargain collectively with the above-named labor organization in the unit set forth below by unilaterally withdrawing cafeteria privileges or otherwise changing the wages, rates of pay, or other conditions of employment: All production and maintenance employees and all employees of the Metallurgical Labora- tory (Department 20) employed by Henry Vogt Machine Company at its Louisville, Ken- tucky, facility; but excluding clerical employ- ees, managerial employees and all professional employees, guards and supervisors as defined in the Act and all other employees. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action: (a) Reinstate the cafeteria privileges for the De- partment 20 employees as they existed on October 20, 1978, make said employees whole for any losses occasioned by Respondent's unilateral action, and, upon request, bargain collectively with respect to the cafeteria privileges. (b) Post at its Louisville, Kentucky, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by 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 unlawful cessation f benefits Until that anlouncement, it , as entirely reasonlable, and indeed responsible. fr the Union to dismiss Respondent's earlier threats as ere election propaganda, and to gise Respondent the benefit of the doubt h dibeli ing what it regarded as employee conjec- ture and speculation hI the event that this Order is enlforced by a Judgment of a United States Court of Appeals. the wo rds in the notice reading "Posted by Order oft the National Labor Relations Board" shall read "Posled Pursu- alnt Io a Judgnletl iof the Un ited States Court of Appeals IFnforcing an Order f the Nationlal I.abor Rclationls Board " HENRY VOGT MACHINE COMPANY 365 posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER PENELLO, dissenting: Unlike my colleagues, I would dismiss the com- plaint. Following the principles set forth in the dis- sent in Federal-Mogul Corporation, Bower Roller Bearing Division, 209 NLRB 343 (1974), I find that Respondent lawfully withdrew the cafeteria privi- leges enjoyed by the laboratory employees before the election, but which were not in accord with the benefits enjoyed by the production and mainte- nance employees in the unit. The parties are under no obligation to bargain anew over the working conditions of the employees who become a part of the unit after the election. The working conditions of the established unit automatically and equally prevail for all unit employees, including employees newly added after an Armour-Globe election. 6 Thus, upon voting to become part of the unit rep- resented by the Steelworkers, the laboratory em- ployees voted to accept the working conditions ap- plicable to the unit employees, specifically their ex- clusion from the cafeteria. Accordingly, Respon- dent did not violate Section 8(a)(5) by revoking the cafeteria privileges of the laboratory employees. Moreover, shortly before ratification, upon dis- covery of the impending termination of the cafete- ria privileges, the Union made no effort to bargain with Respondent over these changes. Instead, sometime after the contract was ratified, Union Representative Hatfield spoke to Respondent's labor relations manager, Max Densford, about the loss of cafeteria privileges. After a brief exchange between the two, the Union apparently dropped the matter until it filed a charge. I conclude that the Union acquiesced in the change, after it was notified that the loss of privileges was imminent, by failing to follow up and request bargaining.7 My conclusion is further supported by testimony that the union representatives "shrugged their shoul- ders" when laboratory employees told them the cafeteria privileges were to be terminated. This action is consistent with the attitude assumed by the union negotiators throughout the preparations for bargaining. The union officials were aware that during the 1977 and 1978 representation election campaigns, Respondent emphasized during speech- 6 The Globe Machine and Stamping Co., 3 NLRB 294 (1937). Armour and Company, 119 NLRB 623 (1957). ' Clarkwood Corporation, 233 NLRB 1172 (1977): Medicenter. Mid- South Hospital, 221 NLRR 670, 678-679 (1975) es to employees that the lunchroom privileges were enjoyed by "non-Union" employees, and, because of space, were not available to "union shop" em- ployees. In addition, the Administrative Law Judge concluded that, "in the early time period of negoti- ations, in September, the Union's bargaining com- mittee was clearly apprised by metallurgical em- ployees of the upcoming loss of privilege of eating in the lunchroom." The response of Union Repre- sentative Tharp, at one point during these conver- sations with the laboratory employees, was that nothing could be done until the lunchroom benefit was taken away. The Union made no effort to raise this issue during the long course of negotiations. Furthermore, in the absence of any evidence of discriminatory motive, I find no violation of Sec- tion 8(a)(3) of the Act in Respondent's conforming the working conditions of the laboratory employ- ees to the rest of the unit, in accord with the prin- ciples set forth in my dissent in Federal-Mogul Corp., supra. I am disturbed, however, by the failure of both parties to use the collective-bargaining process to resolve their differences. Here is an instance in which both sides maneuvered around the edges of good-faith bargaining in an effort to outwit the op- position and achieve their objectives by circum- venting the frank and open discussion that is the heart of collective bargaining. It is distressing that the Union would sit idly by in the face of repeated warnings by the laboratory employees that the cafeteria privileges would soon be withdrawn. The Union's stance was to wait for Respondent to make its move and then file a charge rather than attempt to bargain. An unfair labor practice charge is a poor substitute for collective bargaining. Neither am I sympathetic to Respondent's tac- tics. Rather than declaring its intentions during the course of negotiations, Respondent inexplicably re- mained silent until the parties were on the verge of ratification and then announced that, as of the next workday, the cafeteria privileges would be re- voked. This action contributed to preventable mis- understanding and needless confrontation. That the Board's limited resources need be invoked to re- solve this avoidable problem is no tribute to the co- operativeness and good faith of either of these par- ties. In my opinion, by provoking this purposeless stalemate both parties have contributed to a misuse of Board processes. It is in the mutual best interests of the parties to be practical and accommodating about similar matters and deal with them in the context of cooperative collective bargaining rather than in the antagonistic atmosphere of a National Labor Relations Board courtroom. Industrial peace cannot be implemented by the Board alone without 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a reasonable and good-faith effort by both labor and management. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT withdraw cafeteria privileges or otherwise discriminate against employees because they choose to be represented for pur- poses of collective bargaining by United Steel- workers of America, AFL-CIO-CLC, or any other labor organization. WE WILL NOT refuse to bargain collectively with the above-named labor organization in the unit set forth below by unilaterally with- drawing cafeteria privileges or otherwise changing the wages, rates of pay, or other conditions of employment: All production and maintenance employees and all employees of the Metallurgical Lab- oratory (Department 20) employed by Henry Vogt Machine Company at its Louis- ville, Kentucky, facility; but excluding cleri- cal employees, managerial employees and all professional employees, guards and supervi- sors as defined in the Act and all other em- ployees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL reinstate the cafeteria privileges for the Department 20 employees as they exist- ed on October 20, 1978, make said employees whole for any losses occasioned by our unilat- eral action, and, upon request, bargain collec- tively with respect to the cafeteria privileges. HENRY VOGT MACHINE COMPANY DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This pro- ceeding, under Section 10(b) of the National Labor Rela- tions Act, as amended, was heard pursuant to due notice on November 14, 1979, in Louisville, Kentucky. The charge was filed on April 9, 1979. The complaint in this matter was issued on May 18, 1979. The issues concern whether the Respondent has unilaterally and discriminatorily changed certain of its policies concern- ing its represented employees' eating at a cafeteria in the main office building. Thus, the issues concern whether Respondent has violated Section 8(a)(5), (3), and (1) of the Act. All parties were afforded full opportunity to partici- pate in this proceeding. Briefs have been filed by the General Counsel and the Respondent and have been con- sidered. Upon the entire record in the case and from my obser- vation of witnesses, I hereby make the following: FINDIINGS OF FACT I. 'THE BUSINESS OF THE EMPLOYER The facts herein are based on the pleadings and admis- sions herein. Henry Vogt Machine Company, the Respondent, a Kentucky corporation, is engaged in the manufacture and sale of power boilers, heat exchangers, ice machines, valves, fittings, and other metal products at its Louis- ville, Kentucky, facility. During a representative 12-month period, the Respon- dent sold and shipped goods and materials, valued in excess of $50,000, from its Louisville, Kentucky, facility, directly to points outside the Commonwealth of Ken- tucky. As conceded by the Respondent and based on the foregoing, it is concluded and found that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1I. THE LABOR ORGANIZATION INVOLVED' United Steelworkers of America, AFL-CIO-CLC, is, and has been at all times material herein, a labor organi- zation within the meaning of Section 2(5) of the Act. Il. THE UNFAIR LABOR PRACTICES A. Preliminary Issues2 I. Supervisory-agency status At all times material herein, the following persons were employed by Respondent in the position set oppo- site their respective names and are, and have been, agents of the Respondent, acting on its behalf, and super- visors within the meaning of Section 2(11) of the Act: Max B. Densford Werner Vogel Dudley Spencer Dave Brown Industrial Relations Manager Plant Superintendent Supervisor Metallurgical Supervisor 2. Background From sometime in 1937 to August 4, 1978, Local 1693 of the United Steelworkers of America represented the employees in the appropriate bargaining unit herewith set forth: All production and maintenance employees em- ployed by Henry Vogt Machine Company at its il t fact.. are based in Ihe pleadings and adrni.Ssions herein - The fact, are based Ithe pleadings and admisrn..ion thcrcri. HENRY VOGT MACHINE COMPANY 367 Louisville, Kentucky, facility; but excluding all em- ployees of the Metallurgical Laboratory (Depart- ment 20), clerical employees, managerial employees and all professional employees, guards and supervi- sors as defined in the Act and all other employees. For over 29 years preceding August 4, 1978, the Re- spondent recognized Local 1693 of the United Steel- workers as the collective-bargaining representative of the employees in the aforesaid appropriate bargaining unit. Prior to August 4, 1978, the Respondent had a smaller unit of employees who were die sinkers. Such employ- ees, approximately 17 in number, were represented by the International Die Sinkers' Conference. The Respondent, prior to August 4, 1978, had collec- tive-bargaining agreements concerning the above respec- tive bargaining units with the respective Unions as set forth. The collective-bargaining agreements in effect be- tween the Respondent and the Unions prior to August 4, 1978, were not presented into evidence. The overall evi- dence relating to Local 1693's proposed contractual changes, however, indicates that the ultimate 1978 to 1981 contract between the Respondent and the Steel- workers was similar in major effect to the existing (pre- August 1978) contract excepting for the integration of classifications and wages and related details concerning the metallurgical employees. Prior to August 4, 1978, the Respondent also had em- ployees other than those in the above referred to bar- gaining units. Thus, the Respondent had office, engineer- ing, sales, and supervisory employees. Included with such employees outside the bargaining unit were metal- lurgical laboratory employees. Prior to and after August 4, 1978, the Respondent has had two different informa- tion booklets for employees. One booklet, having a blue front and back sheet, contained on the outside words to reveal that the booklet contained "Information For You And Other Employees At Vogt." The second booklet, having a white front and back sheet, contained on the outside words to reveal that the booklet contained "In- formation For You And Other Vogt Office, Engineering, Sales And Supervisory Employees." The evidence as a whole reveals that the blue booklet, "Information For Ycu And Other Employees At Vogt"was designed and intended to be for the employees represented by unions and covered by collective-bargain- ing agreements. As indicated later, the white booklet was designed and intended for employees not represented by a union. The Respondent's Steelworkers collective-bargaining agreements both pre-August 1978 and pre-October 23, 1978-October 23, 1981, contained a provision relating to safety and work rules as herein set out. ARTICLE 22. SAFETY AND WORK RULES The Company shall have the right to make and enforce reasonable work rules and safety rules for the conduct of its business. All additions and/or changes in work rules shall be printed and distribut- ed to the employees. It is understood that such rules will not abridge any provision of this Agreement. The Union shall have the right to question the rea- sonableness of the Company's rules through the grievance procedure. The Company will enforce work rules and safety rules uniformly. The Respondent's information booklet (the blue book- let), for its employees represented by unions, contains general sections relating to "Programs and Policies and Rules and Regulations." Insofar as the employees in the unit of employees represented by the Steelworkers are concerned, the Respondent is authorized by article 22 of the collective-bargaining agreement with the Steelwork- ers to adopt reasonable safety and work rules. Such arti- cle 22, however, does not authorize the Respondent to unilaterally set or change other conditions of employ- ment. The blue booklet (information booklet for employees represented by the Unions) contained and contains the following information relating to food service as set forth under "Programs and Policies." FOOD SERVICE You may bring your lunch or supper, or you may purchase food at the plant. Vending machines for hot and cold drinks, and snacks are located in var- ious areas of the plant. The trucks of a caterer are in the Steel Storage Area of Department 28 and in the vicinity of Department 16, Machine Shop, during the lunch and supper periods. As indicated, the Respondent's white information booklet (Information For You And Other Vogt Office, Engineering, Sales And Supervisory Employees) was de- signed for employees not represented by the Unions. This white booklet contained the following information relating to "Food Service" in the section of programs and policies. FOOD SERVICE You may bring your lunch or supper, or you may purchase food at the plant. Vending machines for hot and cold drinks, and snacks are located in var- ious areas of the plant. Day shift employees on office payroll are eligible to have lunch in the Com- pany lunchroom on the third floor, front office. As indicated, prior to August 4, 1978, the Respondent had some metallurgical laboratory employees who were not represented by a union. Although the total number of such employees on all shifts is not clear, approximate- ly 12 of these employees were on the day shift and car- ried on the "office" payroll.a Such day-shift employees were included in the class of employees for whom the "white information booklet" was applicable. Thus, such day-shift employees were eligible to have lunch in the company lunchroom. These employees could purchase hot lunches at a cost of $1 for the five lunches during a week. It is not clear whether or not these lunches had to It appears that most of the metallurgical emplosees ere on the day shift and that there ere metallurgical employees on the first and secornd shifts. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be purchased on a weekly basis or could be purchased separately for 20 cents per meal. In 1977, there was a representation election conducted among the metallurgical employees. Prior to this elec- tion, on June 2, 1977, Werner P. Vogel made a speech to certain of the metallurgical employees. Vogel spoke con- cerning the benefits of food services for the metallurgical employees as is revealed by the following excerpt from such speech: Also for the non-union employees on the day shift, the company has the lunchroom in which all of you are eligible and have been invited to utilize for the nominal amount of $1.00 per week for five (5) lunches. This is far less than you would pay for one lunch outside and is probably less than your cost for bringing lunch from home. I do not know how many of you take advantage of this benefit but, it is available to you and because of space, is not available to our union shop employees. I believe that you will have to agree that this is a decided plus if you are taking advantage of it. On August 4, 1978, there was another representation election conducted among the metallurgical employees. Prior to such election, on August 3, 1978, Werner P. Vogel spoke to certain of the metallurgical employees concerning food services and benefits as is revealed by the following excerpt from Vogel's speech of such date: Also for the non-union employees on the day shift, the company has the lunch room in which all of you may eat for the nominal cost of $1.00 per week for five lunches. This is far less than you would pay for one lunch outside and is undoubtedly less than your cost for bringing lunch from home. On August 4, 1978, a representation election was con- ducted in Case 9-RC-12521 among the Respondent's metallurgical laboratory department (Department 20) employees. The election notice in effect set forth that, if the employees chose the Union (United Steelworkers of America, AFL-CIO-CLC, Local 1693) as their collec- tive-bargaining representative, they would become part of the Steelworkers production and maintenance unit previously set forth. On August 14, 1978, the Board cer- tified the results of the August 4, 1978, representation election, and as a result thereof such metallurgical labo- ratory employees became a part of the appropriate bar- gaining unit represented by the Steelworkers. B. The Bargaining; The Elimination of Lunchroom Privilege-Metallurgical Employees At the time of the August 4, 1978, representation elec- tion among the metallurgical employees, there existed a collective-bargaining agreement covering the bargaining unit represented by the Steelworkers. Such contract was due to shortly expire. Rather than bargain concerning the metallurgical employees as regards the period of time preceding the expiration of the existing contract, the par- ties agreed to delay bargaining until negotiations for a new collective-bargaining agreement for all employees represented by the Steelworkers commenced in early September 1978. Bargaining would encompass the em- ployees in the expanded unit represented by the Steel- workers. Bargaining by the parties involved some 19 sessions ending with a contract being ratified by union members on October 22, 1978, and executed by the parties on Oc- tober 23, 1978. Union Representative Hatfield assumed that the metal- lurgical employees had benefits somewhat similar to bar- gaining unit employees, and made no serious efforts to determine the specific existing benefits. Hatfield's and the Union's proposals to the Respondent were made on the basis of desired benefits for all unit employees. The pro- posals specifically directed to the metallurgical employ- ees involved only the determination of classifications and wages. Prior to and during the time of bargaining, the Union allowed all employees, including metallurgical employees, to share in input as to proposals, and to vote on ratification of the contract. During the bargaining, the Union proposed the follow- ing as part of a letter of understanding: The Company will construct and maintain a lunch- room for all employees. What occurred during negotiations with respect to dis- cussion of the above proposal is revealed by the follow- ing credited excerpts from Harbin's testimony: A. I remember the date, September 14, on Sep- tember 14 both parties of the union negotiations committee and the company's negotiating commit- tee, were present. It was a very brief discussion and we brought up the subject as we went down the itemized list. We went down the list, we went down the letters of un- derstanding on Page 16 of the proposal, the ques- tion was raised, "What do you mean concerning lunchroom facilities?" Q. This was a question raised by the company's negotiating committee? A. Yes. At that time we were seeking clarifica- tions of proposed items. Q. Was an explanation given? A. Yes. Q. What was that explanation? A. Mr. Hatfield, his comment was first concern- ing it and he said something to the effect, "You can provide us lunch." Just without pause, Mr. Joe Sot- tile, vice president, made a comment to the effect "We are not asking you to buy our lunch or pro- vide our lunch. What we are asking is for a clean place for our employees to sit down and eat their lunch." That was briefly the comment and it hap- pened in a matter of a couple of seconds or minutes. The evidence does not reveal that agreement was reached on the above referred to proposal. The facts are clear that, during the period of bargain- ing, metallurgical employees told officials of Local 1693 that the Respondent had told such employees that the privilege of eating in the lunchroom would be taken HENRY V()GT MACHINE COMPANY 36 away from the metallurgical employees as a result of such employees having selected the Union. The facts also reveal that some of the metallurgical employees de- sired to have the metallurgical employees' wages negoti- ated retroactively. It is clear that the officials of Local 1693, members of the negotiating committee, indicated to everyone that the metallurgical employees were to re- ceive the same benefits as other employees and no more. There is one point of apparent conflict between metal- lurgical employee Wagner and negotiating committee- man Tharp's testimony. Thus, Wagner testified to the effect that he believed that at one time Tharp said that nothing could be done until the lunchroom benefit was taken away.4 I credit Wagner's testimony on such point. As indicated, in the early time period of negotiations, in September, the Union's bargaining committee was clearly apprised by metallurgical employees of the up- coming loss of privilege of eating in the lunchroom. The facts as a whole reveal that the bargaining committee was also aware of Vogel's speeches (relating to such benefits) and the information booklets. On Friday, before the date of ratification of the contract, the Respondent's supervisor, Brown, told metallurgical employees in effect that as of Monday, the date the contract was to be ex- ecuted, metallurgical employees could not use the lunch- room.5 Such facts were communicated by metallurgical employees to the bargaining committee before the up- coming contract was ratified. The facts reveal in effect that committee members shrugged their shoulders and passed the matter off. Said contract was ratified, and after execution of the contract on October 23, 1978, day-shift metallurgical em- ployees have not been allowed to use the lunchroom fa- cilities. Sometime later, complaints by the metallurgical employees over the loss of lunchroom facilities were made to the Union. Union Representative Hatfield raised the question of the usage of lunchroom facilities with the Respondent's labor relations manager, Densford. Dens- ford told Hatfield that the Company could not feed all of the people in the bargaining unit in the cafeteria. Hatfield told Densford that he was only speaking of Department 20. Densford made no further reply. C. Contentions, Conclusions 1. The General Counsel contends that the elimination of lunchroom privileges for the day-shift metallurgical employees occurred because such employees selected the Union, that such discourages union membership, and that by such conduct the Respondent violates Section 8(a)(3) and (I) of the Act. The Respondent contends in effect that the elimination of lunchroom privileges for metallur- gical employees flowed from the removal of such em- ployees from the office payroll, that such was not dis- criminatory within the meaning of Section 8(a)(3) and (1) of the Act. Considering all of the facts, I am not persuaded that the Respondent was discriminatorily motivated in the elimination of benefits concerning lunchroom privileges This is not to he construed a an, intent h harp hat something would he done uhen the benefits ere taken aua Up to this point of time he da',-shift metallurgical emplosvcs had continued to utilize lunc hroolm privileges for the metallurgical employees. Rather, the overall evi- dence revealing benefits and conditions for union and nonrepresented employees appears to show a reasonable employer. It appears that the distinction in privileges of using the lunchroom was and is dictated by the space available and number of employees who could be served in such space. It appears reasonable that the Union and the Employer would be concerned about the effect of different benefits for employees in the same unit. Al- though Hatfield indicated later that the Union was only interested in the continuation of lunchroom benefits for the metallurgical employees. Densford's remarks con- cerning space available, previously made, and the prob- lems of an overall unit, reveal, in my opinion, insufficient evidence to establish that the change in benefits was dis- criminatorily motivated or inherently discriminatory. All employees were aware of the size of the bargaining unit, the size of the lunchroom facilities, and expressed rea- sons for the limitation of the privilege.' Accordingly, al- legations of conduct violative of Section 8(a)(3) and (1) shall be recommended to be dismissed. 2. The General Counsel contends and the Respondent denies that elimination of benefits-lunchroom facili- ties-as regards the metallurgical employees constituted conduct violative of Section 8(a)(5) and (1) of the Act. Considering the facts that the Union's bargaining com- mittee, including officials of Local 1693, were well aware that the privileges of the metallurgical employees using the lunchroom facilities were to cease, the failure of the Union to bring this issue up during the bargaining sessions and before ratification of the contract must be said to be tantamount to a waiver of bargaining over such issue. This being so, the evidence is insufficient to establish that the Respondent has violated Section 8(a)(5) and (1) of the Act by the elimination of lunchroom bene- fits as applicable to metallurgical employees. According- ly, allegations of conduct violative of Section 8(a)(5) and (I) shall be dismissed. 7 Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: I Although the da-shift mclallurgical emplo.ces ere reatcd differ- entls hecalluse of status of being unlrepresented and on the "offitc " pay roll as compared to, being coxered h a collectise-bargainitg agreement hc- Is eell he Rcespolldtet and a illlon., the fact d not reecal that uch dif- ference in treatmellit i a, accorded in order to dicourage union member- ship Nor do the o,erall facts rescal that such discouragement of unrion membership as inheretll ClariXksid Corporturimn. 233 NRB 1172 11977) A the hearing, the (ieneral Counsecl appeared aare that there as an issue as lo helher the overall circumstances resealed that the Union ' , actionls 'Aere lanta- mounl to a aivscr he (encral Counsel appeared IIo belie'e Ih.l ,iuch issue in'lolred ai colltentilol that the Union had failed to proper 5 reprc- sclt the nlietallurgical cnploees The Respondent has argued inI cffct that the tlniotn's filing if charges in this matter as io protect itself from such illegali,s In1 m opinionl the ivcrall facts do n suggestl hat the Union has filed to properl5 represent the metallurgical cmploees L.unchr.lnl i hcelits arc similar ill effec t a factlir of cerall vages }Had the question of the lunclhroom benefits been ijected into the bar- gaining. it is ral,tahle Io beliese that it s ould ha.is had a bearing n the oNcrall seag icrcases for the nletallurgical enlphloees 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCIUSIONS OF: LAW 1. Henry Vogt Machine Company, the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO-CLC, is, and has been at all times material herein, a labor orga- nization within the meaning of Section 2(5) of the Act. 3. The facts do not establish that the Respondent, as alleged, has violated Section 8(a)(5), (3), and (1) of the Act. [Recommended Order for dismissal omitted from pub- lication.]