N.L.R.B. v. Creative Food Design Ltd.
| Decision Date | 26 July 1988 |
| Docket Number | AFL-CI,No. 87-1235,I,87-1235 |
| Citation | 852 F.2d 1295 |
| Parties | 128 L.R.R.M. (BNA) 3089, 271 U.S.App.D.C. 328, 57 USLW 2107, 109 Lab.Cas. P 10,627 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CREATIVE FOOD DESIGN LTD., T/A The Broker, Respondent, Hotel & Restaurant Employees Local 25,ntervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Steven B. Goldstein, Atty., N.L.R.B., with whom Aileen A. Armstrong, Deputy Associate Gen. Counsel and Peter Winkler, Atty., N.L.R.B., Washington, D.C., were on the brief for petitioner. Elliott Moore, Office of the Gen. Counsel, N.L.R.B., Washington, D.C., also entered an appearance for petitioner.
Ronald A. Lindsay, with whom Peter Chatilovicz and Robert M. Shea, Washington, D.C., were on the brief for respondent.
Jeffrey Freund and Mady Gilson, Washington, D.C., were on the brief for intervenor, Hotel and Restaurant Employees Local 25, AFL-CIO.
Before ROBINSON, MIKVA and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
The National Labor Relations Board ("Board") seeks enforcement of an unfair labor practice order issued against Creative Food Design, Ltd., t/a The Broker ("company"). The Board ruled that the company's president voluntarily recognized Local 25 of the Hotel and Restaurant Employees International Union ("Union") during the course of a meeting in the summer of 1981. The Board concluded that the company's subsequent refusal to bargain with the Union constituted an unfair labor practice in violation of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("the NLRA"), 29 U.S.C. Secs. 158(a)(1), (a)(5) (1982), and ordered the company to bargain with the Union.
We find that substantial evidence in the record as a whole supports the Board's findings and affirm its holding that the company violated the federal labor laws. We also disagree with the company's claim that the Board erred by failing to consider turnover within the bargaining unit workforce in determining whether to issue a bargaining order. We therefore affirm the Board's bargaining order.
The company operates a restaurant in Washington, D.C. called The Broker, and a catering service known as Creative Food Design. The company is owned by three individuals, William Homan, Horst Klein, and Stavros Veletsis. Homan, the president of the company, runs the catering service but is also involved in the restaurant's operations. For example, he signs all paychecks, often closes the restaurant at the end of the evening, acts as a host at the restaurant, and participates in hiring of restaurant employees.
Homan was in charge on August 3, 1981, when two union officials arrived shortly before the restaurant opened and requested to speak with him. Ronald Richardson, executive secretary treasurer of the Union, informed Homan that Local 25 represented a majority of the approximately 33 employees of The Broker. Homan responded that The Broker did not have a union. Richardson replied that a majority of the employees had signed union authorization cards.
At this juncture, a critical exchange took place. The evidence, as credited by the Administrative Law Judge ("ALJ"), indicates that Richardson offered to show Homan the signed authorization cards if the latter agreed to recognize the Union upon verification that the cards represented a majority of the employees. Homan assented and took the cards. According to the (conflicting) testimony of those present, Homan then either "went through the cards one by one, very slowly," Joint Appendix ("J.A.") at 64, examined each card and placed it on the bottom of the stack "through [all of] the cards," J.A. at 78, looked at the first few cards and "fanned through the remainder," J.A. at 95, or examined them "like shuffling a deck." J.A. at 123. Homan testified that he only "glanced at the top card." J.A. at 32.
Homan then acknowledged that the signatories appeared to represent a majority of The Broker's employees. See J.A. at 64, 78, 95-96. Richardson then requested that Homan sign a recognition agreement. Homan replied that he had no problem with the agreement, but that he would have to consult with his partners before signing. See J.A. at 78. The union men gave Homan photocopies of the cards and a list of employees who had signed, and Homan agreed to get back to the Union in a few days.
Soon thereafter, Homan and Richardson exchanged letters in which Richardson sought to hold Homan to the Union's view that Homan had recognized Local 25. Homan insisted that he had never agreed to recognize the Union. On August 17, the company filed a petition with the Board's Regional Office seeking an election to determine whether Local 25 enjoyed majority support at The Broker.
The Union then filed charges that the company had committed an unfair labor practice by refusing to bargain, and the Board's Regional Office issued a complaint. After a two day hearing in May 1982, the ALJ decided that Homan had in fact recognized the Union during his August 1981 conversation with Richardson and that the company's subsequent refusal to bargain violated the NLRA.
The company filed exceptions to the decision. In February 1987, the Board issued its order and decision affirming the ALJ's findings that the company, through Homan, voluntarily recognized the Union and thereafter unlawfully withdrew recognition. The Board ordered the company to bargain with Local 25.
Well-established principles govern our review of this case. First, the Board's findings of fact are conclusive if supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We must accept the ALJ's credibility determinations, as adopted by the Board, unless they are patently insupportable. See Conair Corp. v. NLRB, 721 F.2d 1355 (D.C.Cir.1983), cert. denied sub nom., Local 222, ILGWU, AFL-CIO v. NLRB, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 819 (1984). Thus, the company bears a heavy burden in seeking to overturn the Board's decision.
Second, the law governing voluntary recognition of unions is clear. The employer is not required to recognize a union on the basis of a majority card showing and has the option to insist on an election. See Linden Lumber v. NLRB, 419 U.S. 301, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974). However, once the employer recognizes the Union--"no matter how informally," NLRB v. Lyon and Ryan Ford, 647 F.2d 745, 750 (7th Cir.), cert. denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981)--the employer is bound by that recognition and may no longer seek an election. Id; see also Jerr-Dan Corp., 237 N.L.R.B. 302, 303 (1978), enf'd, 601 F.2d 575 (3d Cir.1979); NLRB v. Brown and Connolly, 593 F.2d 1373, 1374 (1st Cir.1979); Georgetown Hotel v. NLRB, 835 F.2d 1467, 1470-71 (D.C.1987).
Straightforward application of these principles leads us to sustain the Board's decision that the company's refusal to bargain with Local 25 was unlawful. Substantial evidence supports that Homan agreed to recognize Local 25 if a check of the cards offered by Richardson revealed authorizations from a majority of employees. No one contested that Homan had authority to bind the company. The testimony credited by the ALJ suffices to show that Homan agreed to these terms, examined the cards in sufficient detail to determine the strength of the Union's support, and acknowledged the Union's majority. At that point, the bargain was complete--the company, through its president, had voluntarily recognized the Union.
The company strenuously argues that the testimony concerning Homan's examination of the authorization cards is unworthy of belief. Credibility issues, however, are quintessentially the province of the ALJ and the Board. After evaluating the conflicting testimony, the ALJ decided that Homan had in fact checked the cards and acknowledged the Union's majority. The company's arguments to the contrary were duly considered and rejected by the ALJ and the Board. Absent extraordinary circumstances not present here, we will not disturb the ALJ's credibility determination as ratified by the Board.
The company disputes the basis on which the ALJ credited Richardson's testimony that he offered to show Homan the cards only on condition that the company recognize the Union if the signers represented a majority. The ALJ reasoned that Richardson, an experienced organizer, would not subject union supporters to the risk of employer reprisal unless the company agreed to bind itself by virtue of a majority showing. The company maintains that this observation represents sheer speculation, entirely unsupported by the record.
We disagree. Both Richardson and the other union official present, Mr. DeLeon, directly testified that Richardson stated he would show Homan the cards only on condition. The ALJ was entitled to believe them. Nor is our decision in Georgetown Hotel v. NLRB, supra, to the contrary. In that case, the court overturned the Board's determination that a particular event had occurred by virtue of an improper inference unsupported by any evidence in the record. Here, in contrast, ample direct testimony supports the ALJ's position.
The company contends that, even assuming Homan checked the cards and acknowledged the Union's majority strength, he explicitly disavowed any power or intent to bind the company through voluntary recognition. After acknowledging the Union's majority status and examining the recognition agreement, according to testimony credited at the hearing, Homan stated:
I don't have any problem with it. But, I would have to show it to my partners first. And I'll show it to them, get it signed, and then get back to you in the next couple of days.
J.A. at 78 (internal quotes removed). The company argues that these statements do not constitute evidence of commitment to bargain, which the company views as...
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