Carambola Beach Resort

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.