Carambola Beach Resort

National Labor Relations Board - Board Decisions

Nov 10, 2010

356 N.L.R.B. 119 (N.L.R.B. 2010)

CARAMBOLA BEACH RESORT 119
J.S. Carambola, LLP, d/b/a Carambola Beach Resort
and Our Virgin Islands Labor Union (OVILU).
Case 24–CA–10951
November 10, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on July 1, 2008,
the General Counsel issued the complaint on July 15,
2008, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case
24–RC–8577. (Official notice is taken of the “record” in
the representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer, admitting in part and denying in part the
allegations in the complaint and asserting affirmative
defenses.1
On August 12, 2008, the General Counsel filed a Mo-
tion Submitting Motion for Summary Judgment and At-
tachments, and Motion for Summary Judgment. On Au-
gust 14, 2008, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response.
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. 8.2 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 is-
sued its decision in New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635, holding that under Section 3(b) of the
Act, in order to exercise the delegated authority of the
1 The Respondent’s answer denies sufficient knowledge concerning
the filing and service of the charge. Copies of the charge and affidavit
of service thereof are attached as exhibits to the General Counsel’s
motion, showing the dates as alleged, and the Respondent does not
challenge the authenticity of these documents.
2 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.
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.
On August 6, 2010, the Board issued a further Deci-
sion, Certification of Representative, and Notice to Show
Cause in Cases 24–CA–19151 and 24–RC–8577, which
is reported at 355 NLRB 367. Thereafter, the Acting
General Counsel filed an amended complaint in Case 24–
CA–10951, the Respondent filed an amended answer,
and the Acting General Counsel filed a statement in sup-
port of the Motion for Summary Judgment.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in both pro-
ceedings to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification on the basis
of its objections to the election in the representation pro-
ceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a U.S. Virgin Is-
lands corporation, with an office and place of business in
Davis Bay, St. Croix, U.S. Virgin Islands, has been en-
gaged in the operation of a hotel and resort.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, derived gross revenues in
excess of $500,000, and purchased and received at its
facility in Davis Bay, St. Croix, U.S. Virgin Islands,
goods valued in excess of $50,000 directly from points
outside the U.S. Virgin Islands.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
3 We also deny the Respondent’s request that the complaint be dis-
missed and that the Board award it attorneys’ fees.
356 NLRB No. 23

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 120
(7) of the Act, and that the Union, Our Virgin Islands
Labor Union (OVILU), is a labor organization within the
meaning of Section 2(5) of the Act.4
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on October
25, 2007, the Union was certified on August 6, 2010, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:

All full time and regular part time employees, including
cooks, bartenders, housekeeping and laundry workers,
receptionists, waiters, waitresses, and maintenance
workers who are employed by the Employer at its facil-
ity in St. Croix, USVI; but excluding all other employ-
ees, guards, and supervisors as defined in the Act.

The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
About June 16, 2008, by electronic mail, the Union re-
quested that the Respondent bargain collectively with it
as the exclusive collective-bargaining representative of
the unit. Since about June 25, 2008, and continuing after
the Union’s certification, the Respondent has failed and
refused to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the unit.
We find that this failure and refusal constitutes an unlaw-
ful failure and refusal to bargain in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the unit employees, the Respondent has en-
gaged in unfair labor practices affecting commerce with-
in the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.5
4 The Respondent’s answer denies sufficient knowledge regarding
the Union’s status as a labor organization and the appropriateness of the
certified unit. In the underlying representation proceeding, the Re-
spondent stipulated that the unit was appropriate and did not challenge
the Union’s labor organization status. Accordingly, we find that the
Respondent’s answer does not raise any issue warranting a hearing with
respect to these allegations. See All American Service & Supplies, 340
NLRB 239 fn. 2 (2003).
5 In Howard Plating Industries, 230 NLRB 178, 179 (1977), the
Board stated:
Although an employer’s obligation to bargain is established
as of the date of an election in which a majority of unit employees
vote for union representation, the Board has never held that a
simple refusal to initiate collective-bargaining negotiations pend-
ing final Board resolution of timely filed objections to the election
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to recognize and bargain on request with the Un-
ion and, if an understanding is reached, to embody the
understanding in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); and Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, J.S. Carambola, LLP, d/b/a Carambola
Beach Resort, Davis Bay, St. Croix, U.S. Virgin Islands,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Our Virgin Islands Labor Union (OVILU) as the exclu-
sive collective-bargaining representative of the employ-
ees in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

All full time and regular part time employees, including
cooks, bartenders, housekeeping and laundry workers,
receptionists, waiters, waitresses, and maintenance
workers who are employed by the Employer at its facil-
is a per se violation of Section 8(a)(5) and (1). There must be ad-
ditional evidence, drawn from the employer’s whole course of
conduct, which proves that the refusal was made as part of a bad-
faith effort by the employer to avoid its bargaining obligation.

No party has raised this issue, and we find it unnecessary to decide in this
case whether the unfair labor practice began on the date of the Respondent’s
initial refusal to bargain at the request of the Union, or at some point later in
time. It is undisputed that the Respondent has continued to refuse to bargain
since the Union’s certification and we find that continuing refusal to be
unlawful. Regardless of the exact date on which Respondent’s admitted
refusal to bargain became unlawful, the remedy is the same.

CARAMBOLA BEACH RESORT 121
ity in St. Croix, USVI; but excluding all other employ-
ees, guards, and supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Davis Bay, St. Croix, U.S. Virgin Islands,
copies of the attached notice marked “Appendix.”6 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 24, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means.7 Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since June 25, 2008.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
7 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec-
tronic distribution of the notice.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with Our Virgin Islands Labor Union (OVILU) as the
exclusive collective-bargaining representative of the em-
ployees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the following bargaining unit:

All full time and regular part time employees, including
cooks, bartenders, housekeeping and laundry workers,
receptionists, waiters, waitresses, and maintenance
workers who are employed by us at our facility in St.
Croix, USVI; but excluding all other employees,
guards, and supervisors as defined in the Act.
J.S. CARAMBOLA, LLP, D/B/A CARAMBOLA
BEACH RESORT