McCall Corporation v. National Labor Relations Board

432 F.2d 187, 75 L.R.R.M. (BNA) 2223, 1970 U.S. App. LEXIS 7294

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 17, 1970
• Docket: 12638_1
• Status: Published

Opinions

PER CURIAM:

In Westinghouse Electric Corp. v. NLRB, 387 F.2d 542 (4th Cir. 1967), this court, sitting en banc, declined to enforce an order of the National Labor Relations Board requiring an employer to bargain over the prices of food served by an independent contractor in the company’s cafeterias. We held, with two judges dissenting, that under the circumstances of the case the cafeteria prices were not “conditions of employment” within the meaning of Section 8(d) of the Labor Act [29 U.S.C. § 158 (d)], and that consequently the employer’s refusal to bargain on this issue was not a violation of Section 8(a) (5) and (1) of the Act [29 U.S.C. § 158 (a) (5) and (1)]. The reasons for and against this ruling have been adequately discussed in the majority and minority opinions on the subject and need not be recounted.¹

The Board now. asks us to overrule Westinghouse. We are not, however, persuaded that we should. Neither intervening authority nor change in circumstances suggests any cause for departing from our decision.

Alternatively, the Board seeks to distinguish the cases. The material facts, however, are similar. Here, as in Westinghouse, the employees had other places to eat or they could bring their own lunches. In neither instance were the plants so isolated that employees were dependent on the food that caused the controversies. It is this circumstance that chiefly distinguishes these cases from Weyerhaeuser Timber Co., 87 NLRB 672, 25 LRRM 1163 (1949).

The principal factual difference between Westinghouse and McCall lies in the degree of control the employer exercised over the caterers who sold the food. In Westinghouse the caterer fixed the prices subject to a contractual provision that the “quality and prices of the meals served and the hours of service thereof in said cafeteria shall at all times be reasonable.” The employer could enforce this provision by unilaterally terminating the contract on sixty days written notice. In McCall the employer supplied the food and fixed the prices. We believe, however, 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.

Enforcement denied.

1 . Westinghouse Electric Corp. v. NLRB, 387 F.2d 542 (4th Cir. 1967) (en banc), 369 F.2d 891 (4th Cir. 1966) (panel) ; McCall Corp., 172 NLRB No. 55, 69 LRRM 1187 (1968) ; Westinghouse Electrie Corp., 156 NLRB 1080, 61 LRRM 1165 (1966) ; Weyerhaeuser Timber Corp., 87 NLRB 672, 25 LRRM 1163 (1949).