NLRB v. Miller Brewing Company

• Decision Date: 20 February 1969
• Docket Number: No. 22698.,22698.
• Citation: 408 F.2d 12
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MILLER BREWING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

408 F.2d 12 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MILLER BREWING COMPANY, Respondent.

No. 22698.

United States Court of Appeals Ninth Circuit.

February 20, 1969.

John D. Burgoyne (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, David C. Nevins, Washington, D. C., Paul A. Cassady, Director, NLRB, Los Angeles, Cal., for petitioner.

Willard Z. Carr, Jr. (argued) of Gibson, Dunn & Crutcher, Los Angeles, Cal., for respondent.

Before BARNES and ELY, Circuit Judges, and PREGERSON,^* District Judge.

BARNES, Circuit Judge:

In this petition for enforcement, the National Labor Relations Board seeks affirmance of its approval of the trial examiner's order finding that respondent Miller Brewing Company was guilty of an unfair labor practice because it refused a union request to negotiate plant rules published by respondent.

Miller Brewing Company is one of seven members of the California Brewers Association (hereafter Association), a multi-employer bargaining unit. Respondent joined Association in May of 1966 when it acquired a California brewery belonging to a member. At that time, respondent signed the existing labor agreement which like all previous contracts made no provision for issuance of plant rules. (R. at 22.)

Shortly after it began operating its California plant, respondent, without notice to any union representing plant employees, published in booklet form what it characterized as "plant rules" which included both safety rules and general regulations. Similar rules had been put into effect at other member companies without union consultation. (R. at 78.) The complaining union, the International Association of Machinists and Aerospace Workers (hereafter Union) then requested that the rules and the accompanying enforcement machinery be negotiated. The plant manager declined this request on the ground that respondent had the right to issue rules unilaterally. When respondent did not acknowledge a letter making the same demand, Union filed charges of an unfair labor practice. No demand concerning the rules was made on Association by Union before the Board's order or after the order during contract negotiations between Union and Association, a fact respondent offered (unsuccessfully) to place in the record. Respondent produced testimony to show that it has always been willing to discuss the meaning and application of the rules. (R. at 26.) No other union has objected to the issuance of the rules. (R. at 62.)

The hearing examiner and the Board found that by refusing to bargain, respondent violated section 8(a) (5) and (1) of the National Labor Relations Act and ordered respondent to negotiate the rules. Our authority to review the Board's decision comes from 29 U.S.C. § 151.

Respondent correctly concedes that the isuance of new plant rules is a proper matter for negotiation under the "condition of employment" clause of section 8(d). That phrase is

"sufficiently broad to include safety rules and practices which are undoubtedly conditions of employment and * * * requires good faith bargaining as a mutual obligation of the employer and the Union in connection with such matters." NLRB v. Gulf Power Co., 384 F.2d 822, 825 (5th Cir. 1957). See Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S. 203, 222, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), Mr. Justice Stewart concurring.

Appellant argues that in the context of the present problem this legal truism is irrelevant for five reasons. (1) The union presented its request to bargain to the wrong party; the demand upon respondent was improper because of respondent's membership in Association. (2) Respondent contends that Union's past actions constitute a waiver of any right it had to bargain about plant rules. (3) Respondent suggests that Union had no right to negotiations because the rules issued are no more than a codification of regulations already in force. (4) Additionally respondent alleges both that the arbitration procedures previously agreed upon by the parties were the proper method of settling the problem, and (5) that the Board erred by refusing to reopen the record to admit evidence showing that Union did not raise the issue of plant rules during contract negotiations. Finding no merit in respondent's arguments, we affirm the decision of the Board and order it enforced.

I. We reject respondent's first allegation, that Union should have presented its demand to Association as the industry-wide bargaining agent.¹ While multi-employer bargaining units are conducive to industrial peace and are favored by national policy, e. g., Detroit Newspaper Publishers Ass'n v. NLRB, 372 F.2d 569, 576 (6th Cir. 1967), this preference is not incompatible with union negotiations with an individual member of an association on matters unique to that member. Examination of the record reveals that from time to time other members of Association have issued plant rules without acting through the Association. Past conduct by members is significant because these problems are solved on a case by case basis; an analysis of "accepted flexibility in the format of bargaining" helps to reveal whether a practice that is not intrinsically unacceptable — individual negotiation — will be denominated an unfair labor practice. Retail Clerks Local 1550 v. NLRB, 330 F.2d 210, 216 (D.C.Cir.1964). In our judgment, the issuance of plant rules by individual employers indicates that these other members did not consider their promulgation to be a function of Association. If the company did not desire to bargain through the Association because the rules were local matter, it should not later refuse to bargain individually. Additionally, the fact that there has been no showing that this conduct weakened or disrupted the Association vitiates what would otherwise be an insurmountable obstacle to this practice. In any event, respondent could, of course, be represented in its negotiation with Union by Association, under section 8(b) (1) (B) of the Act. Since this is the case, respondent can informally obtain the same result and respect the same policy goals it alleges will be hampered by its individual negotiation with Union. Our consideration of respondent's argument on this point convinces us that it lacks merit and logic; we cannot accept it.

II. Respondent next contends that because Union failed to object to...