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

National Labor Relations Board - Board Decisions

Dec 7, 2010

356 N.L.R.B. 273 (N.L.R.B. 2010)

DIVI CARINA BAY RESORT 273
Grapetree Shores, Inc. d/b/a Divi Carina Bay Resort
and Virgin Islands Workers Union. Case 24–
CA–11101
December 7, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
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 January 14,
2009, the General Counsel issued the complaint on Janu-
ary 28, 2009, alleging that the Respondent has violated
Section 8(a)(5) and (1) of the Act by refusing the Un-
ion’s request to bargain following the Union’s certifica-
tion in Case 24–RC–8566. (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 deny-
ing in part the allegations in the complaint and asserting
affirmative defenses.1
On February 19, 2009, the General Counsel filed a
Motion for Summary Judgment. On February 24, 2009,
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 a response.
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 (2009) (not re-
ported in Board volumes).2 Thereafter, the General
Counsel filed an application for enforcement in the Unit-
ed 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 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. Accordingly, we find
that the Respondent’s denials in this regard do not raise any issue of
fact warranting a hearing.
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 September 28, 2010, the Board issued a further
Decision and Notice to Show Cause in Cases 24–CA–
11101 and 24–RC–8566, which is reported at 355 NLRB
1155. Thereafter, the Acting General Counsel filed an
amended complaint and notice of hearing in Case 24–
CA–11101. The Respondent failed to file an answer to
the amended complaint.
The National Labor Relations Board has delegated its
authority in this proceeding 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 certification on the basis of its
objections to conduct alleged to have affected the elec-
tion and the Board’s disposition of a challenged ballot in
the representation proceeding.
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.3 See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.4
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
Christiansted, St. Croix, U.S. Virgin Islands, herein
called the hotel, has been engaged in the operation of a
hotel and casino. During the 12-month period preceding
issuance of the complaint, the Respondent, in conducting
its business operations described above, derived gross
3 We find no merit in the Respondent’s affirmative defense that “[t]o
the extent that any allegations of the Complaint are outside the six-
month statute of limitations for unfair labor practice charges,” those
allegations are barred by the 6-month statute of limitations set forth in
Sec. 10(b) of the Act. The Respondent has not presented any factual or
legal basis in support of its asserted defense, and the unfair labor prac-
tice charge and complaint allegations are consistent with the time pro-
visions of Sec. 10(b).
4 Thus, the Respondent’s requests that the complaint be dismissed
and that it recover costs and attorneys’ fees are denied.
356 NLRB No. 47

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 274
revenues in excess of $500,000 and purchased and re-
ceived at its hotel 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
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.5
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on June 12,
2007, the Union was certified on September 28, 2010, as
the exclusive collective-bargaining representative 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; excluding all other employees, office,
clerical employees, guards, and supervisors as defined
by the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
About December 17, 2008, the Union, by letter, by re-
questing the Respondent to provide information concern-
ing bargaining unit employees, requested the Respondent
to recognize and bargain collectively with it as the exclu-
sive collective-bargaining representative of the unit.6
About December 22, 2008, by letter, the Respondent
failed and refused to recognize and bargain with the Un-
ion as the exclusive collective-bargaining representative
5 The Respondent’s answer denies sufficient knowledge regarding
the Union’s status as a labor organization. The Respondent, however,
stipulated in the underlying representation proceeding that the Union is
a labor organization within the meaning of the Act. In addition, the
Respondent denies that it operates a casino, stating that the casino is
operated by Treasure Bay. On July 30, 2008, by unpublished Decision,
the Board adopted in relevant part the findings of the administrative
law judge asserting jurisdiction over the Respondent “as a corporation
with an office and place of business in Christiansted, St. Croix, U.S.
Virgin Islands, which operates a hotel and casino.” A three-member
panel adopted this July 30, 2008 Decision on September 28, 2010. 355
NLRB 1155. Further, regardless of which entity actually operates the
casino, there is no dispute that the Respondent is the employer of the
employees in the certified bargaining unit. Accordingly, we find that
the Respondent’s answer does not raise any issues of fact warranting a
hearing with respect to these allegations. See All American Services &
Supplies, 340 NLRB 239 fn. 2 (2003).
6 The Board has held that “a request for relevant information consti-
tutes a request for bargaining.” Pak-Well, 206 NLRB 260, 261 (1973),
citing Rod Ric Corp., 171 NLRB 922, enfd. 428 F.2d 948 (5th Cir.
1970); cert. denied 401 U.S. 937 (1971).
of the unit. About September 29, 2010, by letter, the
Union again requested that the Respondent recognize it
and bargain.
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 unlawful 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.7
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).
7 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 un-
ion representation, the Board has never held that a simple refusal to in-
itiate collective-bargaining negotiations pending final Board resolution
of timely filed objections to the election is a per se violation of Section
8(a)(5) and (1). There must be additional 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 Re-
spondent’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 con-
tinued 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.

DIVI CARINA BAY RESORT 275
ORDER
The National Labor Relations Board orders that the
Respondent, Grapetree Shores, Inc. d/b/a Divi Carina
Bay Resort, Christiansted, St. Croix, U.S. Virgin Islands,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Virgin Is-
lands Workers Union as the exclusive collective-
bargaining representative of the employees in the bar-
gaining 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, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate 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 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; excluding all other employees, office,
clerical employees, guards, and supervisors as defined
by the Act.
(b) Within 14 days after service by the Region, post at
its facility in Christiansted, St. Croix, U.S. Virgin Is-
lands, copies of the attached notice marked “Appendix.”8
Copies of the notice, on forms provided by the Regional
Director for Region 24, after being signed by the Re-
spondent’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
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. 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
8 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.”
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since December
22, 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.

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
violated 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 refuse to recognize and bargain with
Virgin Islands Workers Union as the exclusive collec-
tive-bargaining representative of the employees 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, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining 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; excluding all other employees, office,
clerical employees, guards, and supervisors as defined
by the Act.
GRAPETREE SHORES, INC. D/B/A DIVI CARINA
BAY RESORT