Ford Motor Company v. National Labor Relations Board

PETITIONER:Ford Motor Company
RESPONDENT:National Labor Relations Board
LOCATION:Congress

DOCKET NO.: 77-1806
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 441 US 488 (1979)
ARGUED: Feb 28, 1979
DECIDED: May 14, 1979

ADVOCATES:
John A. Fillion – for respondent UAW Local 588
Norton J. Come – for respondent NLRB
Theophil C. Kammholz – for petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – February 28, 1979 in Ford Motor Company v. National Labor Relations Board

Warren E. Burger:

We’ll hear arguments next in Ford Motor Company against the National Labor Relations Board.

Mr. Kammholz, I think you may proceed whenever you’re ready.

Theophil C. Kammholz:

Mr. Chief Justice and members of the Court.

The central issue in this case is whether prices of cafeteria and vending machine food provided in a manufacturing plant to employees falls within the term wages, hours or other terms and conditions of employment as said out in Section 8 (d) of the Act.

Potter Stewart:

Well, it’s just the last of those phrases that —

Theophil C. Kammholz:

Or —

Potter Stewart:

— conceitedly is not — well there is a claim as much as wage, is it not?

Warren E. Burger:

Oh, subsidy.

Theophil C. Kammholz:

Yes.

Potter Stewart:

Concededly it’s not hours.

Theophil C. Kammholz:

Or it may be wages.

The board has raised this issue and I should like to address it late —

Warren E. Burger:

Well, specially if the Union demanded in a subsidy that would be in effect (Voice Overlap) —

Theophil C. Kammholz:

That would be in the area of wages.

Warren E. Burger:

— addition of compensation.

Theophil C. Kammholz:

Yes.

The facts essentially are not in dispute.

The Ford plant, Chicago Heights, Illinois, employs some 3500 hourly employees with reference to the issue before the Court here.

There are two cafeterias, five vending machine areas known as Cook Cribs.

The providing of food is pursuant to a contract with a food vendor, ARA.

And over the years the contract has been in effect, the contractor has a 9% override on its cost of food, labor and related services.

And in the event of a deficit there is provision for a maximum of $52,000 a year cushion which Ford is obligated to pay.

There is a concurrent provision that in the event of profit, this inures to Ford’s benefit but as one might anticipate there has not been a profit in recent years.

Harry A. Blackmun:

Mr. Kammholz, would your position here be any different if Ford itself were operating this cafeterias?

Theophil C. Kammholz:

No, it would be identical Mr. Justice Blackmun.

Harry A. Blackmun:

You would take the position that they are not subject to collective bargaining.

Theophil C. Kammholz:

Precisely, precisely.

Harry A. Blackmun:

Even though you could fix all the prices?

Theophil C. Kammholz:

Exactly.

Warren E. Burger:

Would you take the view that permitting or not permitting food dispensing establishments was subject to collective bargaining mandatory?

Theophil C. Kammholz:

Not in the context of this case.

One can visualize a situation such as presided in the Weyerhaeuser case, remote location, no opportunity for employees to —

Warren E. Burger:

Lumberjacks up in the mountains.

Theophil C. Kammholz:

Lumberjacks, exactly.

But here there are — any number of eating places outside the plant granted they were utilized very infrequently.

Here, in 1976 when this — the underlying dispute arose the Union requested bargaining on food prices and services.

The company refused.

Employees engaged in a boycott.

And over 50% of the Union members from the period early February to June 1976 either brownbagged, perhaps some of them didn’t eat all or others went to the restaurants nearby.

William H. Rehnquist:

Didn’t they just get 30 minutes for lunch?

Theophil C. Kammholz:

30 minutes for lunch Your Honor and two twenty — two minute rest periods.

William H. Rehnquist:

They couldn’t have gone very far.

Theophil C. Kammholz:

The nearest restaurant is 1.6 tenths miles away.

Harry A. Blackmun:

Well then they’re really captive.

Theophil C. Kammholz:

No, I would not concede that they’re captive.

Harry A. Blackmun:

Which I wonder why you made reference to the presence of restaurants in the area.

Theophil C. Kammholz:

Because some employees utilize the restaurants as the record indicates.

Harry A. Blackmun:

Even with a mile —

Theophil C. Kammholz:

Yes.

Harry A. Blackmun:

— plus and 30 minutes?

Theophil C. Kammholz:

Yes.

Harry A. Blackmun:

They’re faster than we are here?

Theophil C. Kammholz:

Well —

Byron R. White:

Much better.

Theophil C. Kammholz:

Or they could bring their lunch which very many did.

And during the boycott presumably nearly all of them did because the boycott was indulged by more than 50% of the employees.

A complete — a charge was filed with the National Labor Relations Board upon Ford’s refusal to bargain about prices and services.

The hearing was had and the administrative law judge found that factually and legally this case was in the context of four other cases which have addressed this issue of food prices.

In each of the four other cases the National Labor Relations Board had gone one way that held that food price is worse mandatory subject to bargaining.

And in each case, the Court of Appeals reversed twice in the Fourth Circuit, once in the First Circuit, in the Food Machinery case and the prior decision in the Seventh Circuit in the Ladish case.

Theophil C. Kammholz:

In each instance, the Court held that food prices properly were not within the meaning of other terms and conditions of employment but rather were remote from what could viewed as the mainstream of the relationship of employer-employee.

In support of that view may I say that over the years, this Court in one case, the Allied Chemical Workers case, circuits in other cases and indeed the Board have made these distinctions between mandatory and nonmandatory subject to bargaining.

It’s perfectly for instance that wages whether incentive or straight hourly, overtime, seniority, holiday pay, vacation pay clearly relate to terms and conditions of employment or indeed wages or hours.

On the other hand, the decided cases hold that such matters as insurance benefits for retired employees, a code of ethics for employees coupled with penalty provisions.

The right to a strike route before a strike may be called, a performance bond required of the Union not to engage in conduct contrary to the contract during its term likewise not a mandatory subject to bargaining.

Now, clearly Your Honors what we’re dealing with here is a drawing of the line.

What properly is encompassed by the requirement of the statute.

Mr. Justice Stewart in your concurrence in the Fibreboard case stated very explicitly that the Act is restrictive and it does contemplated — contemplate unlimited bargaining.

Indeed the legislative history supports this view rather clearly and this is articulated in your concurring opinion, the views of the Board and the unions to the contrary.

When we’re talking about food prices, we’re talking about one element of the cost of living along with housing, transportation, clothing, the national agreement between Ford and the United Auto Workers over the years had has and now contains a cost of living provision so that food prices on the basis of COLA, cost of living adjustment are already bargained and what we’re talking about here really would be another bite at the apple.

The underlying purpose of the Act as set out in this preamble does promote and maintain industrial peace to require food bargaining — bargaining of the food prices would really not encourage industrial peace.

Indeed the UAW in its brief very candidly and openly asserts that “The Act contemplates combat”.

This of course is aviated by the ruling — if this Court will pursue the rulings of the circuits prior to the Seventh Circuit decision in this case that — and I used the phrase with some hesitation but this is what the Court said in the Westinghouse case in the Fourth Circuit this is dealing with trivialities in terms of the employment relationship.

Granted, food is essential for life but we consume it not as employees but as people.

John Paul Stevens:

Mr. Kammholz supposing a company or an employer had a rule requiring employees to eat in the company cafeteria, would the existence or nonexistence of such a rule be mandatory subject to bargaining?

Theophil C. Kammholz:

No, I think not.

If — to use the logging camp example it would make not only complete sense there but really would become an integral part of the job.

Warren E. Burger:

But if you really thought to the Weyerhaeuser case, if the lumberjacks didn’t eat the very hearty food which lumber companies normally provide for them, the productivity would probably go down.

Theophil C. Kammholz:

Ultimately, but that’s not our case.

There because of the circumstances —

Warren E. Burger:

But I was pursuing Mr. Justice Stevens’ —

Theophil C. Kammholz:

Yes.

Warren E. Burger:

— suggestion in some circumstances a you’ve — as you are aware with the Weyerhaeuser case.

The — there being no other place to eat up in the mountains, on the mountainside cutting trees down.

The company provides the food and they want to provide food that will produce a lot of energy that in turn will produce a lot of logs.

Isn’t that the theory behind it?

Theophil C. Kammholz:

Yes, I think the theory Mr. Chief Justice Burger goes one step beyond.

And that is in order to have employees at all in this logging camp there must be some provision for food.

But here again, this is outside the mainstream of the American industrial life and is exception and not the rule.

Thurgood Marshall:

Is the period of times lunch, the bargaining point?

Theophil C. Kammholz:

A period of time for lunch is —

Thurgood Marshall:

So —

Theophil C. Kammholz:

— this is within the context of hours of employment.

Thurgood Marshall:

So lunch is not trivial, is it?

Theophil C. Kammholz:

No, I didn’t say it was trivial.

The Fourth Circuit did it.

Thurgood Marshall:

I thought you did, I misunderstood you.

Theophil C. Kammholz:

The Fourth Circuit did.

Thurgood Marshall:

And I misunderstood you.

John Paul Stevens:

Imagine if you had told someone in the Army or the Navy that the kind of food they had to eat was the trivial condition of the employment they might not agree.

Theophil C. Kammholz:

Probably so, but that same person wouldn’t have much choice and whether he or she wanted —

John Paul Stevens:

That there would be a bargain of what?

Theophil C. Kammholz:

— or not be there.

The point is made that in the Board’s brief that there is industrial practice concerning bargaining about food prices.

This simply is not so, the Board alludes to a case.

The fact of the matter is despite searches on both sides in those case we’ve been able to come up with no contracts which so provide.

I have never seen one in my experience.

This is again not embracing the term trivial but it’s a matter outside the mainstream of the workplace, the workstation.

And the price of food is to be bargainal — bargainable then why not the price of gasoline or a discount toward price of gasoline in order to get to the workplace or bargaining about work clothes which certainly are essential.

John Paul Stevens:

Well, it might be if Ford supplied them and insisted that their supplies be used that wouldn’t shock me.

Theophil C. Kammholz:

Uniforms?

John Paul Stevens:

Yes.

Theophil C. Kammholz:

This then might well become a matter of wages but it does not mean that it’s a compulsory subject to bargaining under the National Labor Relations Act Your Honor.

The Act does not contemplate as Mr. Justice Stewart noted in Fibreboard that there must be bargaining about anything that either side he likes to bargain about.

That wasn’t the intent of the Congress at all.

The effect of Section 8 (d) is to in effect, the line, the power of the Federal Government under this statute on the side of the bargaining agent who has the right to bargain on a mandatory subject.

In other words, economic strikers have rights under the law.

And again, as I noted this simply was not contemplated by the Congress.

Moreover, over the many years this has not been industrial practice.

John Paul Stevens:

Mr. Kammholz, would you help me a little bit on the practical aspect of this.

John Paul Stevens:

Assume we were to hold it was a mandatory subject, would that mean that every time they change the price of coffee they’d have to give you a notice — they give — you’d have to give the Union and they’d have a right to —

Theophil C. Kammholz:

And they would have a right to bargain.

They would have the right to bargain Your Honor.

John Paul Stevens:

Just —

Warren E. Burger:

Unless they lowered the price?

Theophil C. Kammholz:

Yes, an unlikely possibility Your Honor.

This is a problem, the fragmentizing, the injection of a very complex area really loading the gun on one side and not on the other.

The Seventh Circuit without record support stated that brown bagging was not a viable alternative.

But here again, the record simply does not support that conclusion as evidenced by the boycott when over 50% of the Union members did it.

Warren E. Burger:

For how long?

Theophil C. Kammholz:

From early February until June.

John Paul Stevens:

You can do it during the summer, I gather.

Theophil C. Kammholz:

Well Your Honor, our Chicago summers aren’t much different from winters currently.

John Paul Stevens:

Well, they’re pretty hot for leaving food in the locker, aren’t they?

Theophil C. Kammholz:

Well, may I address this point, there is provision in the locker room area, ventilated area for the storing of lunches.

Lunches may not be eaten there but they may be eaten and are eaten in the cafeteria areas which are air conditioned.

John Paul Stevens:

Is the storage area a refrigerator?

Theophil C. Kammholz:

The storage area is not.

This is the locker area.

John Paul Stevens:

Storage for — for the milk or something, you couldn’t do it, end of summer.

Thurgood Marshall:

Or many?

Theophil C. Kammholz:

Well Your Honors, we address this in our reply brief and I think it’s a significant point under modern practices there is a laundry list of food, this is the appendix to our reply brief of food, no refrigeration needed.

Potter Stewart:

Right.

Theophil C. Kammholz:

Indeed, the venerable —

John Paul Stevens:

I suppose you don’t even have to eat if you’re really want to (Inaudible).

Theophil C. Kammholz:

And many did not during the boycott and it is probably better for them on occasion not to.

In the Fannie Farmer Cookbook, this statement is made, for lunch boxes and picnics, frozen sandwiches thaw completely in about 4 hours and tape pressure even though many days or weeks before than sandwiches made the same day which have not been refrigerated.

Similarly in Women’s Day from September 27, 1978 appears this statement, packing lunch can be a real inflation fighter and lots of fun too.

Byron R. White:

Think for yourself.

Thurgood Marshall:

You can also get them for find and tells you, if you let mayonnaised food sit out over four and a half hours, you’re in trouble.

Thurgood Marshall:

And I take them before I take Fannie Farmer.

Theophil C. Kammholz:

Well, Your Honor I must confess you spread it out that way I have no real response.

We have not dealt with the subject of food services.

Indeed, neither the Board nor the Court dealt with food services and what is encompassed by that term.

Does it mean margarine versus butter?

Does it mean special facilities without delivering the point that the problem area here is identical with the problem area on food prices.

It opens a Pandora’s Box of problems, far transcending the lunch box as such.

As a second —

Warren E. Burger:

Does the company — was Ford supply the space to the franchised restaurant operator —

Theophil C. Kammholz:

Yes.

Warren E. Burger:

— at no cost?

Theophil C. Kammholz:

At no cost.

Warren E. Burger:

Anything else beside the space?

Theophil C. Kammholz:

Most of the equipment.

Basically, the contractor provides food, health — runs the operation.

Gets a total 9% —

Thurgood Marshall:

(Inaudible)

Theophil C. Kammholz:

That’s —

Thurgood Marshall:

— by Ford.

Theophil C. Kammholz:

All belongs to Ford, yes.

Well, finally with respect to services as I have perhaps noted in addition to the problem that is inherent in the price problem there is the additional problem of vagueness of the Board’s and the Court’s order, what are services if — for it doesn’t comply, should there be an order that this is a mandatory subject to bargaining?

It’s subject to contempt for violation of an order directing bargaining about “food services”.

Thank you.

Lewis F. Powell, Jr.:

May I ask just this question.

As I read the opinion of the Seventh Circuit, this case was decided by it — on the basis of the facts and circumstances presented in the particular case.

Theophil C. Kammholz:

Yes.

Lewis F. Powell, Jr.:

The questions are stated in the briefs for all of the counsel, applied is here.

It seems to me to be posed questions — seemed to be posed in a different way.

Is the argument that we are hearing here today directed to the facts and circumstances of this case?

Or is it an argument directed to whether or not the prices of food served in an in-house cafeteria always are the subject of mandatory bargaining?

Theophil C. Kammholz:

The question here is posited on the Board’s finding that this case is within the factual and the legal context of the earlier decisions.

In other words, the factual finding was that indeed it was not different despite what the Seventh Circuit said about it.

Lewis F. Powell, Jr.:

Well, the argument it seems to me to be addressed to whether or not on any and all circumstances whatever they may be that the prizes of food in an in-company — in-house cafeteria are the subject of mandatory bargaining.

Is that your understanding —

Theophil C. Kammholz:

That is —

Lewis F. Powell, Jr.:

— regardless of the facts and circumstances.

Theophil C. Kammholz:

Yes, because the facts and circumstances in the thesis that have come up earlier are no different than this case.

Now that excludes —

Lewis F. Powell, Jr.:

Well —

Theophil C. Kammholz:

— the situation —

Thurgood Marshall:

Why?

Theophil C. Kammholz:

— to which the Chief Justice —

Lewis F. Powell, Jr.:

I would’ve thought that the facts and circumstances could very considerably and apparently the Court of Appeals for the Seventh Circuit thought so.

It went to a considerable detail as to the facts and compared them with other cases, produced charts at the end of its opinion, itemizing all sorts of facts.

Theophil C. Kammholz:

I respectfully suggest that the Seventh Circuit arrived at its decision and then wrote an opinion to have followed the result.

For instance, the factors to which it alluded, influence over prices, Court of Appeals said that Ford retains influence over cafeteria and vending machine prices.

But this was a situation in McCall’s in the Fourth Circuit.

The Court of Appeals says the possibility of profit.

John Paul Stevens:

Mr. Kammholz —

Theophil C. Kammholz:

Well —

John Paul Stevens:

I share Justice Powell’s inquiry and I — perhaps I should ask Mr. Come this question but I gather that the — your opponents are not here defending the Seventh Circuit opinion.

They’re —

Theophil C. Kammholz:

I think they’re defending it on the very broad base.

John Paul Stevens:

They’re defending the result but I certainly —

Theophil C. Kammholz:

Yes.

John Paul Stevens:

— don’t read their brief to go along with the theory expressed by the Seventh Circuit in its opinion.

Theophil C. Kammholz:

No, Your Honor, they do not.

And finally I should note further that the amici go beyond the Seventh Circuit and take the position despite the Fibreboard concurrence of Mr. Justice Stewart that there should be bargaining about all matters beyond prices, beyond food services.

As I understand their position, any matter which either party desires to bargain about.

Thank you.

Warren E. Burger:

Very well Mr. Kammholz.

Mr. Come.

Norton J. Come:

Mr. Chief Justice and may it please the Court.

With reference to Justice Blackmun’s question, the Board’s decision rest on alternative grounds, the Board’s basic position is that —

Warren E. Burger:

The Board’s or the Court of Appeals, I’m not —

Norton J. Come:

The Court of Appeals’ decision rest on the second alternative of the Board’s decision.

The Board’s basic position which is setout at A23 of the petition is the position that the Board has consistently maintained for over 13 years namely that the services provided and the prices at which the services — food services are provided in in-plant facilities such as cafeterias and vending machines are terms and conditions of employment within the meaning of 8 (d) and thus within the area of mandatory bargaining.

The Board in footnote 11 of its decision went on to set forth the alternative ground that in any event these matters were bargainable on the facts of this case which the Board sets out there.

The Seventh Circuit sustained the Board on the alternative ground.

As far as the Board is concerned we would prefer to win the case on the broader ground.

Potter Stewart:

Although, death sentence are broader — it’s a broader generic question that was sent down as a question presented in the company’s certiorari petition.

Norton J. Come:

That is correct, if the Court will —

Potter Stewart:

And maybe — but maybe the — but maybe the answer to it as suggested in the questions of my Brothers Blackmun and Powell is, sometimes yes, sometimes no.

Norton J. Come:

Well, that may well be and I call the Court’s attention to the fact that the Board opposed certiorari on the ground that on the facts of this case, it was not necessary to reach the broader question.

Certiorari however was granted not withstanding our opposition.

And now that were here as I say we would prefer to get the area cleared up.

However, if — we can only win the case on the narrower ground, we’ll take it on their ground because the Board had both grounds for its decision.

William H. Rehnquist:

Is it the Board’s position Mr. Come that if a com — if a plant has no eating facilities in it but the union wants the plant to put in eating facilities that is a subject of mandatory bargaining?

Norton J. Come:

I think the logic of the Board’s position would carry you there although the Board has not had occasioned to address that question and that might present questions of capital investment that might get into the reservation expressed in the concurring opinion in Fibreboard.

We don’t have that here.

We do have an in-plant facility that Ford has elected to provide for many, many years.

It has done so —

Warren E. Burger:

That is — that’s an indirect subsidy in itself, isn’t it?

Norton J. Come:

That is correct Your Honor.

Warren E. Burger:

What if — if your position is correct, the Board’s position is correct, the Union then could make a demand not only for all the subsidy indirectly involved in providing the space and the — all the equipment but in addition 50% of the cost.

No reason why they couldn’t require that to be bargained.

And if they could require to the bargained they could go on straight to first, the employer, to pay half of the cost of the food, do they not?

Norton J. Come:

Well, I —

Warren E. Burger:

Any doubt about that?

Norton J. Come:

I think we have to take this on a step by step basis.

Norton J. Come:

I think the term “conditions of employment” is a broad term Congress entrusted to the Board in the first instance.

The task of giving content to it, it does have — it’s not unlimited in the sense that you cannot obliterate the distinction between mandatory and permissive bargaining subjects which the Board and this Court has recognized.

On the other hand there may be an area as the concurring opinion in Fibreboard recognizes where decisions going to the core of an entrepreneurial control might not be within the area of mandatory bargaining.

But we certainly —

Potter Stewart:

Even though they do effect clearly anybody’s definition of conditions of employment.

Norton J. Come:

That is correct, but we submit that we’re a long way from that in this case because —

Warren E. Burger:

But don’t you think we have an obligation when this kind of an issue is presented to see where the proposals on one side of the other will carry us.

Norton J. Come:

Well, I think that you do Your Honor and I like to show you that you’re not carried that far on what we have in this case.

Warren E. Burger:

Yes, we haven’t — at least I didn’t hear you yet answer my question.

The Union demands not only the provision for the space and the refrigerators and the stoves and the implements and the chairs and the tables also in addition to that 50% of the cost of the food so that the employees can have lunch for half prices at work.

Norton J. Come:

Well, I think it’s difficult for me to tell you how the Board is going to answer that question because they haven’t had it.

But conceptually I’m — I don’t —

Warren E. Burger:

But if you can bar — if they must bargain the price of the lunch it can — is there any escape from bargaining the — exactly what I’ve hypothesized to you?

Norton J. Come:

Well, look at — I think that there’s no question that everyone will agree that the physical dimensions of the employees’ working environment are mandatory bargaining subject.

What one hour — what one’s hour is — are to be.

The amount of work that’s expected, what periods of relief are available, what safety practices are observed?

Now, petitioner acknowledges that temperature and the quality of plant air and restroom privileges are part of the physical dimensions of the working environment.

Now, we submit that food availability during the working day is no less a part of the physical dimensions of the employees working environment because as an employee has to work a full 8-hour day without stopping to eat, he is not going to be able to physically perform his job.

William J. Brennan, Jr.:

Mr. Come, let me go back to the Board’s basic position.

Suppose that in this plant there were just two vending machines, as to — is there any de minimis exception to the Board’s position if Ford wanted to take the coffee out of those machines and replace it with milk, is that bargainable?

Norton J. Come:

Well, I think there is a de minimis concept.

I’m not prepared to say that that would be within the de minimis area because I think that Congress made the judgment that it’s to be left to the parties to determine what is significant and what is not significant once you get something that is of vital concern to the employees as part of their working environment because otherwise you’re on the shoal of having the Government, of the Board and the Courts sitting judgment on what is significant and what is not significant.

Industrial experience has shown that many things that might to a layman appear to be trivial have given rise to industrial unrest.

Now, let me tell you what Ford has done here.

They’ve not only provided this facility and greatly subsidized it, they’ve got a provision.

William J. Brennan, Jr.:

Now you’re arguing the facts of it, and I’m trying to —

Norton J. Come:

Yes.

William J. Brennan, Jr.:

— stay with the Board’s —

Norton J. Come:

What?

William J. Brennan, Jr.:

— basic broad initial position.

Norton J. Come:

Well, what I think — I think that —

William J. Brennan, Jr.:

Maybe you’re suggesting we should do as the Seventh Circuit did and decide this case on the facts?

Norton J. Come:

Well, I think that the facts are important in showing that in the — of a — that a — as a matter of industrial experience it would not be a radical thing to hold that this type of arrangement is a bargainable matter.

Ford has bargained with the Union since 1967 about the services to be provided in its in-plant facilities.

Since 1967, the local agreement between Ford and the Union has contained specific provisions concerning vending machine and cafeteria services —

Potter Stewart:

That’s no —

Norton J. Come:

— such as the —

Potter Stewart:

Has no conclusive evidence however that that was a mandatory subject to bargaining.

Norton J. Come:

Now, I agree with you that that is not what again accepting my premise that food availability is part of the physical conditions of the working environment.

Warren E. Burger:

Well, assume that so, is this price part of availability —

Norton J. Come:

Well —

Warren E. Burger:

— in your view?

Norton J. Come:

We submit that price is an integral part of the subject to food services.

Potter Stewart:

Well, it comes very close to wages, there’s a fringe benefit.

Let’s say the demand were for free lunches, free food which for sure I would include half price food.

That’s so could close to a wage demand, isn’t it?

A fringe benefit so closely related to compensation that I would suppose that would clearly be a subject of compulsory bargaining, wouldn’t it?

Norton J. Come:

Yes, it would Your Honor.

And that’s why it doesn’t make too much — it isn’t too rational to try to separate this thing out because it — you have various gradations of it.

And it depends upon the conditions — well, it depends upon the bargain that the parties are able to work out.

And you have the whole spectrum from where there would be a subsidy in terms of the cost of the food, the ware, its no more than what you’d have to pay elsewhere but nonetheless.

It is an important benefit because you’ve got a plant here that is a quarter mile square out in the outline limits of Chicago.

You got a lunch hour that’s 30 minutes.

You got breaks that are 22 minutes.

They are not permitted to leave the plant property during the breaks and even if they were during the lunch hour, they couldn’t feasibly do it because it takes 10 or 15 minutes to go you’re your workstation to the parking lot to get your car out and then you got to drive it out and go through a single file gate and then drive a couple of miles down to hope to get into one of these cafeteria of a — fast food places that are also serving a lot of other industrial plants in the same area.

I mean, why has the company gone to the expense of providing this substantial facility if it did — if they didn’t — if they did not regard it as a very important part of the physical well-being of the worker while he was on the job.

Warren E. Burger:

How did they manage during the boycott?

They carry their food probably?

Norton J. Come:

They either carry their food —

Warren E. Burger:

Or they went out.

Norton J. Come:

— or they did not eat.

Warren E. Burger:

Or they went out, isn’t that what the —

Norton J. Come:

Well, according to the record the finding is the 12 out of 3600 employees left the plant at lunch.

But they had to call off the boycott once the summer came because there were no refrigeration facilities for storing the food which had to be kept in the locker rooms.

But even if — assuming that brown bagging is an alternative, we submit that the Act gives the employees and their Union representatives the right to try to better that alternative.

And obviously if you can get wholesome food at reasonable prices at the place of work that is better than having to, as I explained, run somewhere off the plant premises or even in many cases bringing your own lunch.

Byron R. White:

Well, I take it, I thought you would say that if a plant has no food facilities at all and just relies on the restaurants in the area, that if the Union wants to bargain about putting in a facility to — it would be a bargainable subject.

Norton J. Come:

I think it would be subject of course to the question as to how much of a capital investment that would require and whether that would then bring you —

Byron R. White:

That’s just part of the bargaining that you would take that the employer could not refuse to talk about it, is that it?

Norton J. Come:

Well, if it is a mandatory bargaining, well, if it’s a mandatory bargaining subject you cannot refuse to talk about it.

Byron R. White:

Well under your position, I — what’s your — your position is, that under your position I take it, it would be — he would have to bargain about it.

Norton J. Come:

I think that the logic of the position that I am urging would lead to that result —

Byron R. White:

Surely you’d have to bargain about it if there wasn’t a facility and the employer decided that it was a real bummer and wanted to close it down.

Norton J. Come:

I think so.

Thurgood Marshall:

Mr. Come, does the IBM have to negotiate on the country club it has up in Connecticut?

Norton J. Come:

IBM on the country club?

Thurgood Marshall:

Yes, their average employees up in — upstate New York and Connecticut.

John Paul Stevens:

They’re not organizing.

Thurgood Marshall:

That’s the answer I guess.

Norton J. Come:

Well, we have had cases where hunting lodge privileges have been —

Thurgood Marshall:

Yes, that’s right.

Norton J. Come:

— accorded to employees and if it has been accorded over — enough years so that it has become part of the monuments of the employment relationship bargaining obligation has been found.

I think that —

Thurgood Marshall:

I must —

Norton J. Come:

— I think that the further you get away from the plant though, the more tenuous it becomes and —

Thurgood Marshall:

Well, what about in the plant?

Had you ever take against what Justice Steven talking about, there they raised the price of coffee a nickel?

Norton J. Come:

Yes.

Thurgood Marshall:

How do you stop that from being a —

Norton J. Come:

Well —

Thurgood Marshall:

— a grievance?

Norton J. Come:

Well, the Board’s order here —

Thurgood Marshall:

Well, you — don’t you agree that you couldn’t cover the whole working of it?

Norton J. Come:

No, no.

You can’t —

Thurgood Marshall:

Well, how could you restrict it, that’s what I want to —

Norton J. Come:

Well, the first one — the first of all the Board’s order here unlike the typical order, it is entered in one of these bargaining cases, does not require on the company to bargain before the price increase is made effective.

It is obligated to bargain only if it is put into — once it has been put into effect and if the Union so requests.

So presumably de minimis matters are not going to be raised.

But beyond that, the ingenuity of the parties is such that they can take care of that in the collective bargaining agreements that are negotiated.

They could provide that — they could put a cap on raises such as to say that —

John Paul Stevens:

What if you had more than one Union?

What if you have more than one Union?

Norton J. Come:

Well, if you have more than one Union Your Honor the problem is no different than the problem that you have with respect to a lot of other benefits like pensions, the Seventh Circuit dealt with that problem in the Inland Steel case.

Where it — well, one of the company’s basic argument was pension shouldn’t be bargained about because the steelworkers, the Union that has raised it, it all represents only one bargaining unit.

We got seven or right other unions here.

The Seventh Circuit said that this is something that the parties can work out in collective bargaining.

It is not a reason for denying of benefits of the Act to an employee just because they happen to be in a plant where there are multiple bargaining units.

Parties in practice negotiate things like that jointly with all the unions.

And I have confidence that they would be able to work that out here.

Byron R. White:

Mr. — Mr. Come, I take it before you sit down, I take that the board doesn’t put you — it doesn’t rest his position on the relationship of food prices to wages, it — its working conditions, right?

Norton J. Come:

It is where — it is conditions of employment —

Byron R. White:

And as — so we’re not — we — even if we thought it really was part of wages or sort of a fringe benefit we — we couldn’t affirm on that basis, we’d either have to agree with the Board or not.

Norton J. Come:

Well, in the Weyerhaeuser case which was the —

Byron R. White:

I know, but wouldn’t you — shouldn’t we have a little chainier problem on the –?

Norton J. Come:

I don’t —

Byron R. White:

Or an enlarged chainier problem.

Norton J. Come:

Well, you might have a small chainier problem because if you read the Board decisions in this area beginning with Weyerhaeuser where they squarely put it on both conditions of employment and wages.

And in the Ladish case which was the one before this case although the Board on heavily on conditions of employment.

They also –in their opinion indicated that it was the equivalent of a tax free subsidy.

Norton J. Come:

The opinion can be read as it — as at least not or completely being oblivious to the fact that there is a wage element —

Byron R. White:

But not here?

Norton J. Come:

Well, they relied on all the other cases as their basis for the decision here.

The Board cited Ladish in the earlier cases and again we have the problem of how clearly they have to articulate it.

Byron R. White:

And the Court — but the Court of Appeals didn’t?

Norton J. Come:

The Court of Appeals relied on the conditions of employment.

But we think that that is broad enough to cover this because it is a catch all that speaks in terms or of — or other terms and conditions of employment.

And this has an economic benefit to what — even though it might not be technically wages, it would still be enough to make it a condition of employment.

As a matter of fact —

Potter Stewart:

Well, there are wages in hours are condition of employment by this —

Norton J. Come:

That is correct.

Potter Stewart:

— as they use with other, it makes clear.

Norton J. Come:

That is correct.

And I might say that the legislative history which petitioner overlooks but — which is referred to in our brief and in the amicus brief indicates that the Congress corollary visualized that conditions of employment would be a broader term to just mere working conditions because the Senate Bill which is the genesis of 8 (d) has originally proposed, talked in terms of working conditions.

And Senator Wagner who was still around at that time expressed great concerns that that would take out of the area of mandatory bargaining a lot of things that should be in there and the —

Warren E. Burger:

You’re a little over your time now Mr. Come.

Norton J. Come:

I’m sorry, Your Honor.

Thank you.

So as to change the conditions of employment.

Warren E. Burger:

Mr. Fillion?

John A. Fillion:

Mr. Chief Justice, may it please the Court.

Your Honors I’d like to focus briefly on a matter that while it figured predominantly and prominently in the briefs has not been discussed much here today but I think it’s a very key part of this case.

I’m referring to the really radical exaggeration the Ford is giving vital effects test in this case.

And in doing so, it is urging the Board and ultimately the Courts to get heavily into the matter of regulating the terms that is the substantive terms of collective bargaining agreements.

Moreover, it is violating the fairly clear standards that this Court has already articulated as to how to judge whether or not a bargaining proposal is a term and condition of employment.

This Court or rather the Congress in a statute which has been explicated over and over by this Court has made it very clear that the Labor Board is not to get into the matter of sitting in judgment on the substantive terms of collective bargaining agreements.

That is the Board is not to mix into what goes into and what stayed out — stays out of collective bargaining agreements.

Potter Stewart:

Well, except for subject matter areas.

John A. Fillion:

I’m sorry, Your Honor.

Potter Stewart:

Well, that’s what this case is about.

Potter Stewart:

They — the Board and the Courts do have a job of saying what subject matter areas —

John A. Fillion:

Right.

That this Court —

Potter Stewart:

— are subject to compulsory collective bargaining.

John A. Fillion:

Right.

This Court has laid down as its basic rule those proposals are terms and conditions of employment which are within the employee-employer relationship.

Then you Mr. Justice Stewart in Fibre — in your concurrent decision on Fibreboard went on to say that there is a way of identifying those proposals that are most obviously terms and conditions of the employment and they are the ones that are the physical dimensions of the job environment.

And I would submit that those are the two clear principles that this Court has laid down in judging this matter of what is a term or condition of employment.

Now, what Ford would have you do —

Potter Stewart:

— that concurring opinion was a concurring opinion, it wasn’t the Court laying down anything.

It was just a essay on behalf of three members of the Court.

John A. Fillion:

Correct Your Honor.

Now, the Court has also indicated in Pittsburg Plate Glass that there is a very narrow area within which the vital effect test can be applied.

But it is a very narrow effect.

When the proposal deals with individuals outside the employer-employee relationship then vital effect becomes relevant.

Ford wants you and wants the board to go way beyond that and say a vital effect applies not only when the individuals involved are outside the employee-employer relationship.

Vital effect applies and is the standard even where the individuals involved and even where the subject matter is well within the employer-employee relationship.

But in other words, Ford wants you to apply the vital effect test wall-to-wall and cover the entire gambit of Section 8 (d) with it.

Moreover, even with respect to the physical environment test by which we are to identify those subjects that are most obviously terms and conditions of employment.

Ford says disregard that, even if we assume that something is a part of the physical environment that makes no difference.

The vital effect test is what applies.

Now it is in that —

Warren E. Burger:

Well, do you agree with Mr. Come that although he was not willing to respond that 50% subsidy for the food was bargainable, he quickly ceased on the idea that free food would be bargainable.

Do you think free food?

John A. Fillion:

I think free food is bargainable.

I think 50% is bargainable.

As a matter of fact Mr. Chief Justice I think this is a good illustration of the way in which we might handle the problem that was raised by Mr. Justice Stevens.

That is, “How do you handle something like food prices that are fluctuating all the time?”

There are a number of ways.

Warren E. Burger:

You don’t have to worry about it if the employer pays all of it.

John A. Fillion:

Well, that’s —

Warren E. Burger:

There’s no bargaining problem.

John A. Fillion:

One thing we may do at the bargaining table would be to say we proposed that if there are price increases in the future, the employer will pay half the price increase.

John Paul Stevens:

But you also —

John A. Fillion:

Pardon me?

John Paul Stevens:

You also going to want to bargain about what’s going into the menu.

John A. Fillion:

That’s something that fluctuates radically too but there are a lot of things —

John Paul Stevens:

It won’t be any good to keep the price the same, let them — give you half a scoop of ice cream.

John A. Fillion:

Well, then maybe what we’ll want to do is what we do in practically every collective bargain agreement we have.

And that is to negotiate that into the grievance procedure like other things that fluctuate radically or rapidly like —

John Paul Stevens:

In all seriousness.

It’s inherent in your position that you can bargain about the menu as well as the price, isn’t it?

John A. Fillion:

Yes.

That’s quite —

John Paul Stevens:

Yes.

John A. Fillion:

— quite correct Your Honor.

But probably we would institutionalize that.

Probably we would put into the grievance procedure.

If a price change comes along or a menu change or a quantity change, we wouldn’t say, “Let’s bargain now, we would file a grievance”.

The grievance would go to the first step, the second step, maybe to arbitration.

Maybe some fortunate arbitrator would have the question to resolve of, “Is there enough mashed potatoes or is there enough gravy?”

But it would be institutionalized and it wouldn’t be something that would be picky and get in the way of the parties and absorb a lot of time.

William J. Brennan, Jr.:

Well, I take it the Board’s orders in these areas anyway if they were ever upheld which they haven’t been until now, I suppose they say that the employer doesn’t have to bargain before he puts in any changes.

They just put some in and then if the Union wants to bargain, they ask.

John A. Fillion:

That’s correct.

Byron R. White:

That’s in a — that’s — that in — that is sort of like a grievance procedure?

John A. Fillion:

Exactly, a grievance procedure classically is the company acts, the union reacts and that’s exactly the way this would be.

Potter Stewart:

But the claim is always that there has been a violation of the bargaining agreement.

That’s what a grievance is.

John A. Fillion:

Right.

John A. Fillion:

Now, we would have negotiated into the collective bargaining agreement as we have now in this local agreement provisions that they would probably deal with a little more institutionalization of these things, but there would be rights and duties in that collective bargaining agreement.

Based upon, they would be negotiated as a result of Ford’s having to bargain with us and if there are violations of that count, those contractual provisions, we would then take it through the grievance procedure.

Byron R. White:

But under the Board’s order as I take, if the Board — if the employer raise the price of milk or something else and he just put it in like he would be entitled to do under the Board’s order and the Union said, “Let’s bargain?”

The employer says, “Okay, let’s bargain.”

They sat down and they didn’t reach any agreement.

The employer doesn’t have to agree with them.

John A. Fillion:

Absolutely right.

Byron R. White:

They can have a strike maybe but —

John A. Fillion:

In the absence of a provision on the contract on the price of milk —

Byron R. White:

Yes.

John A. Fillion:

— or regulating the price of milk but absent — anything on the contract on there, we would bargain to an impasse and Ford would go ahead and raise the price of milk —

Byron R. White:

Well, it’s already been raised?

John A. Fillion:

— to his last proposal.

Byron R. White:

— already raised.

It’s already been raised.

They’re gone to the Board’s order, it would’ve been raised already.

John A. Fillion:

That’s correct.

Thurgood Marshall:

Would you also tell me, could use lettuce?

John A. Fillion:

That they could use a lettuce Your Honor?

Warren E. Burger:

Not use.

Thurgood Marshall:

Not use lettuce?

John A. Fillion:

We might — yes, we will — we could under our rights raise quantity, quality, selection, the whole gambit.

Warren E. Burger:

But if it was focused just on lettuce, would that be a secondary boycott?

John A. Fillion:

Sorry Your Honor, I missed your original allusion.

Excuse me.

John Paul Stevens:

I pardon you.

John A. Fillion:

Thank you, Your Honor.

Warren E. Burger:

Very well Mr. Fillion.

John A. Fillion:

Thank you.

Warren E. Burger:

Do you have anything further.

Theophil C. Kammholz:

Very briefly Mr. Chief Justice and the members of the Court.

I think the bottom line on the position which learned counsel for the UAW artic — has articulated here.

What he is talking about and what they’re asking for is a recipe for industrial unrest.

In essence, bargaining on cost of living which embraces as I noted earlier food prices as well as other matters it seems to me as history has demonstrated in the collective bargaining arena, very satisfactorily solves the problem.

To now expand the concept to include prices, services, would be doing a disservice.

I suggest to the intent of the Congress, to the working and the living relationship amongst the parties.

Thank you very much.

Warren E. Burger:

Thank you gentleman.

The case is submitted.