Carambola Beach Resort

National Labor Relations Board - Board Decisions

Aug 6, 2010

355 N.L.R.B. 367 (N.L.R.B. 2010)

CARAMBOLA BEACH RESORT
355 NLRB No. 69
367
J.S. Carambola, LLP, d/b/a Carambola Beach Resort
and Our Virgin Islands Labor Union (OVILU).
Cases 24–CA–10951 and 24–RC–8577
August 6, 2010
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND HAYES
On September 17, 2008, the two sitting members of
the Board issued a Decision and Order in this proceed-
ing, which is reported at 353 NLRB No. 8.1 Thereafter,
the Respondent filed a petition for review in the United
States Court of Appeals for the Third Circuit, and the
General Counsel filed a cross-application for enforce-
ment. On June 17, 2010, the United States Supreme
Court issued its decision in New Process Steel, L.P. v.
NLRB, 136 S.Ct. 2635, holding that under Section 3(b) of
the Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. Thereafter, the court of appeals remanded
this case for further proceedings consistent with the Su-
preme Court’s decision.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in both pro-
ceedings to a three-member panel.2
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. The Board’s September 17, 2008 decision states
that the Respondent is precluded from litigating any rep-
resentation issues because, in relevant part, they were or
could have been litigated in the prior representation pro-
ceeding. The prior proceeding, however, was also a two-
member decision and we do not give it preclusive effect.
We have considered the postelection representation is-
sues raised by the Respondent. The Board has reviewed

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the members who participated in the original deci-
sion. Furthermore, under the Board’s standard procedures applicable to
all cases assigned to a panel, the Board Members not assigned to the
panel had the opportunity to participate in the adjudication of this case
prior to the issuance of this decision.

the record in light of the exceptions and brief, and has
adopted the hearing officer’s findings and recommenda-
tions to the extent and for the reasons stated in the May
28, 2008 Decision and Certification of Representative,
which is incorporated by reference.3
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Our Virgin Islands Labor Union and that it
is the exclusive collective-bargaining representative of
the employees in the following appropriate unit:

All full-time and regular part-time employees, in-
cluding cooks, bartenders, housekeeping and laundry
workers, receptionist, waiters, waitresses, and main-
tenance workers who are employed by the Employer
at its facility in St. Croix, United States Virgin Is-
lands; but excluding all other employees, guards,
and supervisors as defined in the Act.
Notice to Show Cause
As noted above, the Respondent has refused to bargain
for the purpose of testing the validity of the certification
of representative in the U.S. Courts of Appeals. Al-
though the Respondent’s legal position may remain un-
changed, it is possible that the Respondent has or intends
to commence bargaining at this time. It is also possible
that other events may have occurred during the pendency
of this litigation that the parties may wish to bring to our
attention.
Having duly considered the matter,
1. The General Counsel is granted leave to amend the
complaint on or before August 16 to conform with the
current state of the evidence;
2. The Respondent’s answer to the amended com-
plaint is due on or before August 30; and
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before September 7 (with affidavit of ser-
vice on the parties to this proceeding), as to why the
Board should not grant the General Counsel’s Motion for
Summary Judgment. Any briefs or statements in support
of the motion shall be filed by the same date.

3 In affirming the hearing officer’s recommendation to overrule the
objection to conduct by alleged Supervisor Lauritz Thompson, Member
Hayes relies solely on the Respondent’s failure to prove that Thompson
made the statement in dispute.