Grapetree Shores, Inc.,d/b/a Divi Carina Bay Resort

National Labor Relations Board - Board Decisions

Sep 28, 2010

355 N.L.R.B. 1155 (N.L.R.B. 2010)

DIVI CARINA BAY RESORT
355 NLRB No. 194
1155
Grapetree Shores, Inc. d/b/a Divi Carina Bay Resort
and Virgin Islands Workers Union. Cases.24–
CA–11101 and 24–RC–8566
September 28, 2010
DECISION AND NOTICE TO SHOW CAUSE
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On April 10, 2009, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 353 NLRB No. 131 (not reported in
Board volumes).1 Thereafter, the General Counsel filed an
application for enforcement in the United States Court of
Appeals for the Third Circuit, and the Respondent filed a
cross-petition for review. On June 17, 2010, the United
States Supreme Court issued 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 Board, a delegee group of at least three
members must be maintained. Thereafter, the court of
appeals remanded this case for further proceedings consis-
tent with the Supreme 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 proceeding.
The Board’s April 10, 2009 decision states that the Re-
spondent is precluded from litigating any representation
issues because, in relevant part, they were or could have
been litigated in the prior representation proceeding. The
prior proceeding, however, was also a two-member deci-
sion and we do not give it preclusive effect.
We have considered the postelection representation is-
sues raised by the Respondent in Case 24–RC–8566.3 The
Board has reviewed the record in light of the exceptions
and briefs and has adopted the administrative law judge’s

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.
3 Case 24–RC–8566 was originally consolidated with a related unfair
labor practice case, Case 24–CA–10700, which is not before us here.
findings and recommendations to the extent and for the
reasons stated in the Board’s July 30, 2008 Decision, Or-
der, and Direction, which is incorporated herein by refer-
ence.4
The Board’s July 30, 2008 Decision, Order, and Direc-
tion directed the Regional Director for Region 24 to open
and count the ballots of employees Ellen Henry, Karen
Nystrom, Linda Olbermann, and Felicia Dixon and to is-
sue a revised tally of ballots. The revised tally showed
that the Virgin Island Workers Union (Union) had re-
ceived a majority of the valid votes cast, and the Regional
Director issued a certification of representative certifying
the Union as the exclusive collective-bargaining represen-
tative of the employees in the following appropriate unit:

All full time and regular part time production and
maintenance employees, including food and beverage,
kitchen, housekeeping, maintenance, front desk, com-
munications, bell and guest services, gift shop, activi-
ties and grounds; employed by the Employer at its fa-
cility located in St. Croix, U.S. Virgin Islands; exclud-
ing all other employees, office, clerical 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. Although
Respondent’s legal position may remain unchanged, 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 Acting General Counsel is granted leave to
amend the complaint on or before October 8, 2010 to con-
form with the current state of the evidence;
2. The Respondent’s answer to the amended complaint
is due on or before October 22, 2010; and
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before November 12, 2010 (with affidavit
of service 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.

4 In incorporating the Board’s July 30, 2008 decision, we revise fn. 6
of that decision to read as follows: “In adopting the judge’s recommen-
dations to overrule the Respondent’s Objections 1–4, we rely on his
findings, based on his credibility rulings, that the Respondent did not
establish the conduct that it alleged to be objectionable with sufficient
particularity to justify overturning the election. We find it unnecessary
to pass on the judge’s analysis of those objections under Cal-West
Periodicals, 330 NLRB 599 (2000).”