N.L.R.B. v. Brede, Inc., 02-1615.

Decision Date07 January 2003
Docket NumberNo. 02-1615.,No. 02-1616.,02-1615.,02-1616.
Citation315 F.3d 906
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. BREDE, INC., Respondent, United Food and Commercial Workers Union, Local 653. Freeman Decorating Company; United Food and Commercial Workers Union, Local 653.
CourtU.S. Court of Appeals — Eighth Circuit

Ruth E. Burdick, N.L.R.B., Washington, DC, argued, for petitioner.

Joseph B. Nierenberg, argued, Minneapolis, MN, for respondent.

Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.

HEANEY, Circuit Judge.

The National Labor Relations Board petitions this court to enforce two Board orders issued against Brede, Inc. After a careful review of the record, we hold that substantial evidence on the record as a whole supports the Board's orders, and that the Board has made no errors of law in its orders.

I.

Brede supplies equipment, material, and labor to trade show and convention promoters. It employs approximately twenty-five regular decorators, who set up and dismantle exhibits at these events. When necessary, Brede hires extra decorators. The United Food and Commercial Workers' International Union, Local 653 (Local 653) represents Brede's regular employees, but not the extras. For a time, Brede hired the extras directly. However, in 1991, Brede agreed to let Local 653 operate a referral system for hiring extras.

In 1995, Local 653 and Brede began negotiations on a new contract. Some of the extras, however, decided to seek representation by another union because they were concerned that Local 653 might sacrifice their wage rate to bolster the wage rate of the regular employees. In September 1995, Decorators' Local 17U won a Board-conducted election on a stipulated unit consisting of all Brede's on-call, casual, extra employees, excluding all other employees covered by other collective bargaining agreements. Later that same month, Local 17U and Brede met for their first bargaining session. One of Local 17U's demands was that it be authorized to run a referral system by seniority. The company, however, indicated that it intended to resume control of the hiring process, ending Local 653's operation of the process. It stated that it would not implement Local 17U's hiring hall proposal during negotiations and suggested Local 17U address the matter at a scheduled October 24, 1995 meeting. The October 24 meeting was not held due to an internal jurisdictional dispute within the International Steelworkers Union regarding whether Local 17U or another local should represent the extra employees at Brede. The company agreed to postpone the October 24 bargaining session, again indicating that it wanted to take the referral system in house. On October 25, 1995, the company wrote to Local 17U stating it remained willing to continue negotiations with the Local as the extras' exclusive bargaining representative. On December 1, 1995, the company began operating the referral system without notifying Local 17U of its intended actions. In late December 1995, the Steelworkers International resolved its internal jurisdictional dispute in favor of Local 17U.

On January 4, 1996, Brede executed a letter of understanding with Local 653 extending the Local's contract with the company and stating that effective December 1, 1995, the company would handle all extra in-house labor. Brede did not give Local 17U notice of that agreement. In February and March 1996, Local 17U and an employee, Lenny Prouty, filed unfair labor practice charges against the company, alleging it had unilaterally changed the referral system and had failed to give the union notice of the proposed change.

In the period beginning in the spring 1997, Local 653 obtained authorization cards from extras in the unit represented by Local 17U. On May 11, 1998, it submitted these authorization cards to the Minnesota Board of Mediation along with a card check agreement executed by the company. After the card check, the Mediation Service issued a unit determination and certification of explicit bargaining representative, stating that Local 653 was certified as the bargaining representative of extra helpers engaged in decorating for the company. Thereafter the company and Local 653 participated in two bargaining sessions.

In April 1998, Local 17U requested that the company bargain over the rates for extra employees. The company refused to bargain with Local 17U on the issue.

In August 1999, the Board, in response to the unfair labor practice charges filed in 1997, found the company violated §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1), by unilaterally implementing changes in its procedure for hiring unit employees, including taking the referral system back in house without providing Local 17U notice and an opportunity to bargain, and that the company violated §§ 8(a)(5) and (1) by substantially increasing its reliance on sources other than those that belonged to the traditional bargaining unit. In a companion case, the Board found the company violated §§ 8(a)(2) and (1) of the Act, 29 U.S.C. §§ 158(a)(2) and (1), by granting recognition and rendering unlawful assistance and support to Local 653 at a time when Local 17U was the lawful bargaining representative of union employees, and by...

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