National Labor Relations Board v. Creative Food Design Ltd., T/a the Broker, Hotel & Restaurant Employees Local 25, Afl-Cio, Intervenor

852 F.2d 1295, 271 U.S. App. D.C. 328, 128 L.R.R.M. (BNA) 3089, 1988 U.S. App. LEXIS 10031
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 26, 1988
Docket87-1235
StatusPublished
Cited by42 cases

This text of 852 F.2d 1295 (National Labor Relations Board v. Creative Food Design Ltd., T/a the Broker, Hotel & Restaurant Employees Local 25, Afl-Cio, Intervenor) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Creative Food Design Ltd., T/a the Broker, Hotel & Restaurant Employees Local 25, Afl-Cio, Intervenor, 852 F.2d 1295, 271 U.S. App. D.C. 328, 128 L.R.R.M. (BNA) 3089, 1988 U.S. App. LEXIS 10031 (D.C. Cir. 1988).

Opinions

Opinion for the Court filed by Circuit Judge MIKVA.

Dissenting opinion filed by Circuit Judge STARR.

MIKVA, Circuit Judge:

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. §§ 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.

I.

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 (“AU”), indicates that Richardson offered to show Ho-man 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. Ho-man 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 Ho-man 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.

[1297]*1297Soon thereafter, Homan and Richardson exchanged letters in which Richardson sought to hold Homan to the Union’s view that Homan had recognized Local 25. Ho-man 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 AU 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 AU’s findings that the company, through Ho-man, voluntarily recognized the Union and thereafter unlawfully withdrew recognition. The Board ordered the company to bargain with Local 25.

II.

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 AU’s credibility determinations, as adopted by the Board, unless they are patently insupportable. See Conair Cory. 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 Cory., 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 AU 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 AU and the Board. After evaluating the conflicting testimony, the AU decided that Homan had in fact checked the cards and acknowledged the Union’s majority.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cadillac of Naperville, Inc. v. NLRB
14 F.4th 703 (D.C. Circuit, 2021)
CC1 Ltd. P'ship v. Nat'l Labor Relations Bd.
898 F.3d 26 (D.C. Circuit, 2018)
National Labor Relations Board v. Goya Foods
525 F.3d 1117 (Eleventh Circuit, 2008)
Scepter, Inc. v. National Labor Relations Board
280 F.3d 1053 (D.C. Circuit, 2002)
Perdue Farms Inc v. NLRB
D.C. Circuit, 1998

Cite This Page — Counsel Stack

Bluebook (online)
852 F.2d 1295, 271 U.S. App. D.C. 328, 128 L.R.R.M. (BNA) 3089, 1988 U.S. App. LEXIS 10031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-creative-food-design-ltd-ta-the-cadc-1988.